1
EXECUTION COUNTERPART
THIRD
AMENDED AND RESTATED
CREDIT AGREEMENT
dated as of November 14, 1996
among
INTERMET CORPORATION,
THE LENDERS LISTED HEREIN,
and
SUNTRUST BANK, ATLANTA
as Agent
and
NBD BANK
and
FIRST UNION NATIONAL BANK OF NORTH CAROLINA
as Co-Agents
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TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS; CONSTRUCTION.................................................. 2
Section 1.01. Definitions......................................................................... 2
Section 1.02. Accounting Terms and Determination.................................................. 19
Section 1.03. Other Definitional Terms............................................................ 19
Section 1.04. Exhibits and Schedules.............................................................. 20
ARTICLE II. SYNDICATED LOANS, BID RATE LOANS AND
LETTERS OF CREDIT.......................................................... 20
Section 2.01. Commitments; Use of Proceeds........................................................ 20
Section 2.02. Notes; Repayment of Principal....................................................... 21
Section 2.03. Voluntary Reduction of Commitments.................................................. 21
Section 2.04. Letter of Credit Facility........................................................... 21
Section 2.05. Notice of Issuance of Letter of Credit; Agreement to Issue.......................... 21
Section 2.06. Payment of Amounts Drawn Under Letters of Credit.................................... 22
Section 2.07. Payment by Lenders.................................................................. 23
Section 2.08. Bid Rate Loans...................................................................... 24
ARTICLE III. GENERAL LOAN AND LETTER OF CREDIT TERMS.................................... 26
Section 3.01. Funding Notices..................................................................... 26
Section 3.02. Disbursement of Funds............................................................... 27
Section 3.03. Interest............................................................................ 28
Section 3.04. Interest Periods.................................................................... 30
Section 3.05. Fees ........................................................................... 30
Section 3.06. Voluntary Prepayments of Borrowings................................................. 31
Section 3.07. Payments, etc....................................................................... 32
Section 3.08. Interest Rate Not Ascertainable, etc................................................ 33
Section 3.09. Illegality.......................................................................... 34
Section 3.10. Increased Costs..................................................................... 35
Section 3.11. Lending Offices..................................................................... 36
Section 3.12. Funding Losses...................................................................... 37
Section 3.13. Assumptions Concerning Funding of Eurodollar Advances............................... 37
Section 3.14. Apportionment of Payments........................................................... 38
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Section 3.15. Sharing of Payments, Etc............................................................ 38
Section 3.16. Benefits to Guarantors.............................................................. 38
Section 3.17. Limitation on Certain Payment Obligations........................................... 38
Section 3.18. Letter of Credit Obligations Absolute............................................... 39
Section 3.19. Failure to Maintain Minimum Required Rating......................................... 40
ARTICLE IV. CONDITIONS TO BORROWINGS................................................... 40
Section 4.01. Conditions Precedent to Initial Loans and Letters of Credit......................... 40
Section 4.02. Conditions to All Loans and Letters of Credit....................................... 42
ARTICLE V. REPRESENTATIONS AND WARRANTIES............................................. 43
Section 5.01. Corporate Existence; Compliance with Law............................................ 43
Section 5.02. Corporate Power; Authorization...................................................... 44
Section 5.03. Enforceable Obligations............................................................. 44
Section 5.04. No Legal Bar........................................................................ 44
Section 5.05. No Material Litigation or Investigations............................................ 44
Section 5.06. Investment Company Act, Etc......................................................... 45
Section 5.07. Margin Regulations.................................................................. 45
Section 5.08. Compliance with Environmental Laws.................................................. 45
Section 5.09. Insurance........................................................................... 46
Section 5.10. No Default.......................................................................... 46
Section 5.11. No Burdensome Restrictions.......................................................... 46
Section 5.12. Taxes ........................................................................... 46
Section 5.13. Subsidiaries........................................................................ 46
Section 5.14. Financial Statements................................................................ 46
Section 5.15. ERISA............................................................................... 47
Section 5.16. Patents, Trademarks, Licenses, Etc.................................................. 48
Section 5.17. Ownership of Property............................................................... 48
Section 5.18. Financial Condition................................................................. 49
Section 5.19. Labor Matters....................................................................... 49
Section 5.20. Payment or Dividend Restrictions.................................................... 49
Section 5.21. Disclosure.......................................................................... 49
ARTICLE VI. AFFIRMATIVE COVENANTS...................................................... 50
Section 6.01. Corporate Existence, Etc............................................................ 50
Section 6.02. Compliance with Laws, Etc........................................................... 50
Section 6.03. Payment of Taxes and Claims, Etc.................................................... 50
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Section 6.04. Keeping of Books.................................................................... 50
Section 6.05. Visitation, Inspection, Etc......................................................... 50
Section 6.06. Insurance; Maintenance of Properties................................................ 51
Section 6.07. Reporting Covenants................................................................. 51
Section 6.08. Financial Covenants................................................................. 55
Section 6.09. Notices Under Certain Other Indebtedness............................................ 55
Section 6.10. Additional Credit Parties and Collateral............................................ 56
Section 6.11. Amendment to Note Purchase Agreement and
Intercreditor Agreement............................................................. 56
ARTICLE VII. NEGATIVE COVENANTS......................................................... 56
Section 7.01. Indebtedness........................................................................ 56
Section 7.02. Liens ........................................................................... 57
Section 7.03. Mergers, Acquisitions, Divestitures................................................. 58
Section 7.04. Asset Sales......................................................................... 59
Section 7.05. Dividends, Etc...................................................................... 61
Section 7.06. Investments, Loans, Etc............................................................. 61
Section 7.07. Sale and Leaseback Transactions..................................................... 62
Section 7.08. Transactions with Affiliates........................................................ 62
Section 7.09. Prepayments of Subordinated Debt in Violation Thereof............................... 63
Section 7.10. Changes in Business................................................................. 63
Section 7.11. Limitation on Payment Restrictions Affecting Consolidated
Companies........................................................................... 63
Section 7.12. Actions Under Certain Documents..................................................... 63
ARTICLE VIII. EVENTS OF DEFAULT.......................................................... 64
Section 8.01. Payments............................................................................ 64
Section 8.02. Covenants Without Notice............................................................ 64
Section 8.03. Other Covenants..................................................................... 64
Section 8.04. Representations..................................................................... 64
Section 8.05. Non-Payments of Other Indebtedness.................................................. 64
Section 8.06. Defaults Under Other Agreements..................................................... 64
Section 8.07. Bankruptcy.......................................................................... 65
Section 8.08. ERISA............................................................................... 65
Section 8.09. Money Judgment...................................................................... 66
Section 8.10. Ownership of Credit Parties and Pledged Entities.................................... 66
Section 8.11. Change in Control of Intermet....................................................... 66
Section 8.12. Default Under Other Credit Documents................................................ 67
Section 8.13. Attachments......................................................................... 67
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ARTICLE IX. THE AGENT AND CO-AGENTS.................................................... 68
Section 9.01. Appointment of Agent................................................................ 68
Section 9.02. Authorization of Agent with Respect to the Security Documents....................... 68
Section 9.03. Nature of Duties of Agent........................................................... 69
Section 9.04. Lack of Reliance on the Agent....................................................... 69
Section 9.05. Certain Rights of the Agent......................................................... 69
Section 9.06. Reliance by Agent................................................................... 70
Section 9.07. Indemnification of Agent............................................................ 70
Section 9.08. The Agent in its Individual Capacity................................................ 70
Section 9.09. Holders of Notes.................................................................... 70
Section 9.10. Successor Agent..................................................................... 71
Section 9.11. Co-Agents........................................................................... 71
ARTICLE X. MISCELLANEOUS.............................................................. 71
Section 10.01. Notices............................................................................. 71
Section 10.02. Amendments, Etc..................................................................... 72
Section 10.03. No Waiver; Remedies Cumulative...................................................... 72
Section 10.04. Payment of Expenses, Etc............................................................ 72
Section 10.05. Right of Setoff..................................................................... 74
Section 10.06. Benefit of Agreement................................................................ 75
Section 10.07. Governing Law; Submission to Jurisdiction; Waiver of Jury Trial .................... 77
Section 10.08. Independent Nature of Lenders' Rights............................................... 78
Section 10.09. Counterparts........................................................................ 78
Section 10.10. Effectiveness; Survival............................................................. 78
Section 10.11. Severability........................................................................ 79
Section 10.12. Independence of Covenants........................................................... 79
Section 10.13. Change in Accounting Principles, Fiscal Year or Tax Laws............................ 79
Section 10.14. Headings Descriptive; Entire Agreement.............................................. 79
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SCHEDULES
SCHEDULE 5.01 Organization and Ownership of Subsidiaries
SCHEDULE 5.05 Certain Pending and Threatened Litigation
SCHEDULE 5.08 Environmental Matters
SCHEDULE 5.11 Burdensome Restrictions
SCHEDULE 5.12 Tax Filings and Payments
SCHEDULE 5.15 Employee Benefit Matters
SCHEDULE 5.16 Patent, Trademark, License, and Other Intellectual Property
Matters
SCHEDULE 5.17 Ownership of Properties
SCHEDULE 5.20 Dividend Restrictions
SCHEDULE 5.21 Labor and Employment Matters
SCHEDULE 6.08 Financial Covenant Calculations Second Quarter 1996
SCHEDULE 7.06 Existing Investments
SCHEDULE 8.01 Existing Indebtedness
SCHEDULE 8.02 Existing Liens
EXHIBITS
EXHIBIT A - Form of Revolving Note
EXHIBIT B - Form of Bid Facility Note
EXHIBIT C - Form of Letter of Credit Application
EXHIBIT D - Bid Request
EXHIBIT E - Bid Request Invite
EXHIBIT F - Bid Rate Bid
EXHIBIT G - Bid Rate Acceptance/Rejection
EXHIBIT H - Form of Amended and Restated Subsidiary Guaranty
EXHIBIT I - Form of Closing Certificate
EXHIBIT J-1 - Form of Opinion of Dickinson, Wright, Moon, Van Dusen
& Xxxxxxx
EXHIBIT J-2 - Form of Opinion of Xxxxxxxxxx & Cody
EXHIBIT K - Form of Assignment and Acceptance Agreement
EXHIBIT L - Form of Compliance Certificate
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THIRD AMENDED AND RESTATED
CREDIT AGREEMENT
THIS THIRD AMENDED AND RESTATED CREDIT AGREEMENT made and
entered into as of November 14, 1996, by and among INTERMET CORPORATION, a
Georgia corporation ("Intermet"), SUNTRUST BANK, ATLANTA (formerly known as
Trust Company Bank), a banking corporation organized under the laws of the State
of Georgia ("SunTrust"), the other banks and lending institutions listed on the
signature pages hereof, and any assignees of SunTrust, or such other banks and
lending institutions which become "Lenders" as provided herein (SunTrust, and
such other banks, lending institutions, and assignees referred to collectively
herein as the "Lenders"), SUNTRUST BANK, ATLANTA, in its capacity as agent for
the Lenders and each successor agent for such Lenders as may be appointed from
time to time pursuant to Article IX hereof (the "Agent"), NBD BANK ("NBD") and
FIRST UNION NATIONAL BANK OF NORTH CAROLINA ("First Union"), in their respective
capacities as co-agents for the Lenders (the "Co-Agents");
W I T N E S S E T H:
WHEREAS, Intermet, the Agent, the Lenders and certain other
financial institutions entered into that certain Credit Agreement dated as of
August 31, 1992, as amended and restated pursuant to that certain Amended and
Restated Credit Agreement dated as of August 21, 1995 as further amended and
restated pursuant to that Second Amended and Restated Credit Agreement dated as
of February 23, 1996 (as amended up to the date hereof, the "Prior Credit
Agreement") providing certain credit facilities to Intermet;
WHEREAS, Intermet has requested, and the Agent, the
Co-Agents and the Lenders have agreed, to extend certain of the credit
facilities provided in the Prior Credit Agreement, to amend the interest rate
and certain other provisions thereof and to make certain other amendments as set
forth herein;
WHEREAS, the parties wish to amend and restate the Prior
Credit Agreement on the terms and conditions set forth below;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, Intermet, the Lenders, the Agent and the
Co-Agents agree, upon the terms and subject to the conditions set forth herein
as follows:
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ARTICLE I.
DEFINITIONS; CONSTRUCTION
SECTION 1.01. DEFINITIONS. In addition to the other terms
defined herein, the following terms used herein shall have the meanings herein
specified (to be equally applicable to both the singular and plural forms of the
terms defined):
"Acquisition" shall mean any transaction, or any series of
related transactions, by which Intermet and/or any of its Subsidiaries directly
or indirectly (a) acquires any ongoing business or all or substantially all of
the assets of any Person or division thereof, whether through purchase of
assets, merger or otherwise, (b) acquires (in one transaction or as the most
recent transaction in a series of transactions) control of at least a majority
in ordinary voting power of the securities of a Person which have ordinary
voting power for the election of directors or (c) otherwise acquires control of
a 50% or more ownership interest in any such Person.
"Adjusted LIBO Rate" shall mean, with respect to each
Interest Period for a Eurodollar Advance, the rate per annum (rounded upwards,
if necessary, to the nearest 1/100 of 1%) determined pursuant to the following
formula:
Adjusted LIBO Rate = LIBOR
-------------------------------
1.00 - LIBOR Reserve Percentage
As used herein, LIBOR Reserve Percentage shall mean, for any Interest Period for
a Eurodollar Advance, the reserve percentage (expressed as a decimal) equal to
the then stated maximum rate of all reserve requirements (including, without
limitation, any marginal, emergency, supplemental, special or other reserves)
applicable to any member bank of the Federal Reserve System in respect of
Eurocurrency liabilities as defined in Regulation D (or against any successor
category of liabilities as defined in Regulation D).
"Advance" shall mean any principal amount advanced and
remaining outstanding at any time under (i) the Syndicated Loans, which Advances
shall be made or outstanding as Base Rate Advances, Overnight Rate Advances or
Eurodollar Advances, as the case may be, and (ii) the Bid Rate Loans, which
Advances shall be made or outstanding as Bid Rate Advances.
"Affiliate" of any Person means any other Person directly or
indirectly controlling, controlled by, or under common control with, such
Person, whether through the ownership of voting securities, by contract or
otherwise. For purposes of this definition, "control" (including with
correlative meanings, the terms "controlling", "controlled by", and "under
common control with") as applied to any Person, means the possession, directly
or indi-
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rectly, of the power to direct or cause the direction of the management and
policies of that Person.
"Agent" shall mean SunTrust Bank, Atlanta, formerly known as
Trust Company Bank, a Georgia banking corporation and any successor agent
appointed pursuant to Section 9.10 hereof.
"Agreement" shall mean this Third Amended and Restated
Credit Agreement, as amended, modified, restated, or supplemented from time to
time.
"Applicable Commitment Percentage" shall mean, with respect
to the period commencing on the Closing Date and continuing through December 31,
1996, fifteen basis points (0.15%) per annum, and with respect to each fiscal
quarter thereafter, the percentage determined for such fiscal quarter from the
chart set forth below based on Intermet's ratio of Funded Debt to Consolidated
EBITDA determined as of the end of each fiscal quarter, with any change to the
Applicable Commitment Percentage to be immediately effective on the first day of
the second fiscal quarter thereafter:
FUNDED DEBT TO
CONSOLIDATED APPLICABLE
EBITDA RATIO COMMITMENT PERCENTAGE
------------ ---------------------
Greater than or Equal to
3.0:1.0 .30%
Less than 3.0:1.0 and
Greater than or Equal to
2.75:1.0 .25%
Less than 2.75:1.0 and
Greater than or Equal to
2.50:1.0 .225%
Less than 2.50:1.0 and
Greater than or Equal to
2.25:1.00 .20%
Less than 2.25:1.0 but
Greater than or Equal to
2.0:1.0 .175%
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Less than 2.0:1.0 .15%
provided, however, if Intermet fails to deliver its financial statements for
such second preceding fiscal quarter pursuant to Section 6.07 prior to the first
day of the then-current fiscal quarter, the Applicable Commitment Percentage
during such current fiscal quarter shall be .30%.
"Applicable Margin" shall mean, with respect to all
outstanding Eurodollar Advances and Letter of Credit Obligations through
December 31, 1996, one-half of one percent (0.50%) per annum, and with respect
to all outstanding Eurodollar Advances and Letter of Credit Obligations during
each fiscal quarter thereafter, the percentage determined for such fiscal
quarter from the chart set forth below based on Intermet's ratio of Funded Debt
to Consolidated EBITDA determined as of the end of each fiscal quarter, with any
change to the Applicable Margin to be immediately effective on the first day of
the second fiscal quarter thereafter:
FUNDED DEBT TO
CONSOLIDATED APPLICABLE
EBITDA RATIO MARGIN
------------ ------
Greater than or Equal to
3.0:1.0 1.25%
Less than 3.0:1.0 and
Greater than or Equal to
2.75:1.0 1.00%
Less than 2.75:1.0 and
Greater than or Equal to
2.50:1.0 .875%
Less than 2.50:1.0 and
Greater than or Equal to
2.25:1.00 .75%
Less than 2.25:1.0 but
Greater than or Equal to
2.0:1.0 .625%
Less than 2.0:1.0 .50%
provided, however, if Intermet fails to deliver its financial statements for
such second preceding fiscal quarter pursuant to Section 6.07 prior to the first
day of the then-current fiscal quarter, the Applicable Margin with respect to
Eurodollar Advances and Letter of Credit Obligations during
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such current fiscal quarter shall be 1.25%. By way of example, as of the first
day of the fourth fiscal quarter of Intermet, the Applicable Margin with respect
to Eurodollar Advances and Letter of Credit Obligations outstanding hereunder
shall be calculated based upon the ratio of Funded Debt to Consolidated EBITDA
of Intermet reported for the second fiscal quarter of such fiscal year of
Intermet.
"Asset Sale" shall mean any sale or other disposition (or a
series of related sales or other dispositions), including without limitation,
loss, damage, destruction or taking, by any Consolidated Company to any Person
other than a Consolidated Company, of any property or asset (including capital
stock but excluding the issuance and sale by Intermet of its own capital stock)
having an aggregate Asset Value in excess of $500,000, other than sales or other
dispositions made in the ordinary course of business of any Consolidated
Company.
"Asset Value" shall mean, with respect to any property or
asset of any Consolidated Company as of any particular date, an amount equal to
the greater of (i) the then book value of such property or asset as established
in accordance with GAAP, and (ii) the then fair market value of such property or
asset as determined in good faith by such Consolidated Company.
"Assignment and Acceptance" shall mean an assignment and
acceptance entered into by a Lender and an Eligible Assignee in accordance with
the terms of this Agreement and substantially in the form of Exhibit K.
"Bankruptcy Code" shall mean The Bankruptcy Code of 1978, as
amended and in effect from time to time (11 U.S.C. Section 101 et seq.).
"Base Rate" shall mean the higher of (with any change in the
Base Rate to be effective as of the date of change of either of the following
rates):
(a) the rate which the Agent publicly announces
from time to time to be its prime lending rate, as in effect from time
to time, and
(b) the Federal Funds Rate, as in effect from time
to time, plus one-half of one percent (0.50%) per annum.
The Agent's prime lending rate is a reference rate and does not necessarily
represent the lowest or best rate charged to customers; the Agent may make
commercial loans or other loans at rates of interest at, above or below the
Agent's prime lending rate.
"Base Rate Advance" shall mean an Advance made or
outstanding as (i) a Syndicated Loan bearing interest based on the Base Rate, or
(ii) an Advance bearing interest at
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the rate agreed upon between Intermet and the Lenders pursuant to Section 3.08,
Section 3.09 or Section 3.10.
"Bid Accept/Reject Letter" shall mean a notification made by
Intermet pursuant to Section 2.08 substantially in the form of Exhibit G.
"Bid Facility Note" shall mean a promissory note of Intermet
payable to the order of any Lender, in substantially the form of Exhibit B
hereto, evidencing the maximum aggregate principal indebtedness of Intermet to
such Lender with respect to outstanding Bid Rate Advances made by such Lender
pursuant to this Agreement, either as originally executed or as it may be from
time to time supplemented, modified, amended, renewed or extended.
"Bid Rate" shall mean, as to any Bid Rate Bid made by a
Lender pursuant to Section 2.08, the fixed rate of interest per annum offered by
the Lender making the Bid Rate Bid for the relevant Interest Period.
"Bid Rate Advance" shall mean an Advance made by a Lender to
Intermet pursuant to the bidding procedure described in Section 2.08.
"Bid Rate Bid" shall mean an offer by a Lender to make a Bid
Rate Loan pursuant to Section 2.08.
"Bid Rate Loan" shall mean a Borrowing made up of Advances
by all of those Lenders whose Bid Rate Bids have been accepted by Intermet
pursuant to the same Bid Request under the bidding procedure described in
Section 2.08 for the same Interest Period and interest rate (with the
understanding that two Bid Rate Loans may be made pursuant to a single Bid
Request).
"Bid Request" shall mean a request made by Intermet pursuant
to Section 2.08 substantially in the form of Exhibit D.
"Borrowing" shall mean the incurrence by Intermet under any
Facility of Advances of one Type concurrently having the same Interest Period or
the continuation or conversion of an existing Borrowing or Borrowings in whole
or in part.
"Business Day" shall mean:
(a) any day which is neither a Saturday or Sunday nor a
legal holiday on which banks are required or authorized to close in Atlanta,
Georgia or New York, New York; and
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(b) relative to the making, continuing, prepaying or
repaying of any Eurodollar Advances, any day on which trading is carried on by
and between banks in deposits of Dollars in the London interbank market.
"Change in Control Provision" shall mean any term or
provision contained in any indenture, debenture, note, or other agreement or
document evidencing or governing Indebtedness of Intermet evidencing debt or a
commitment to extend loans in excess of $5,000,000 which requires, or permits
the holder(s) of such Indebtedness of Intermet to require that such Indebtedness
of Intermet be redeemed, repurchased, defeased, prepaid or repaid, either in
whole or in part, or the maturity of such Indebtedness of Intermet to be
accelerated in any respect, as a result of a change in ownership of the capital
stock of Intermet or voting rights with respect thereto.
"Closing Date" shall mean the date on or before November 14,
1996 on which the initial Loans are made or deemed to have been made hereunder
and the conditions set forth in Section 4.01 are satisfied or waived in
accordance with Section 10.02.
"Columbus Neunkirchen" shall mean Columbus Neunkirchen
Foundry, GmbH, a German company with limited liability and an indirect,
wholly-owned Subsidiary of Intermet.
"Commitment" shall mean, for any Lender at any time, the
amount of such commitment set forth opposite such Lender's name on the signature
pages hereof, as the same may be increased or decreased from time to time as a
result of any reduction thereof pursuant to Section 2.03, any assignment thereof
pursuant to Section 10.06, or any amendment thereof pursuant to Section 10.02.
"Consolidated Companies" shall mean, collectively, Intermet
and all of its Subsidiaries.
"Consolidated EBIT" shall mean, for any fiscal period of
Intermet, an amount equal to (A) the sum for such fiscal period of Consolidated
Net Income (Loss) and, to the extent deducted in determining such Consolidated
Net Income (Loss), provisions for (i) taxes based on income and (ii)
Consolidated Interest Expense, minus (B) any items of gain (or plus any items of
loss) which were included in determining such Consolidated Net Income (Loss) and
were (x) not realized in the ordinary course of business (whether or not
classified as "ordinary" by GAAP), (y) the result of any sale of assets, or (z)
resulting from minority investments, together in the case of (x), (y) or (z),
any related provision for taxes included in Consolidated Net Income (Loss) with
respect thereto, plus (C) without duplication, the sum of the following items to
the extent not included in Consolidated Net Income (Loss) for such period:
(1) the net income (or net loss) for such period of any
Person which became
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a Subsidiary during such period (a "New Subsidiary");
(2) the net income (or net loss) derived during such period
from any assets acquired by any Consolidated Company during such period
("New Assets"); and
(3) the sum of the following items to the extent deducted in
determining net income of any New Subsidiary or derived from any New
Assets during such period: (x) taxes based on income, (y) Consolidated
Interest Expense, and (z) any items of gain (or plus any items of loss)
which were included in determining such net income and were (aa) not
realized in the ordinary course of business (whether or not classified
as "ordinary" by GAAP), (bb) the result of any sale of assets, or (cc)
resulting from minority investments, together in the case of (aa), (bb)
or (cc), any related provision for taxes included in such net income
with respect thereto;
minus (D) the sum of the following items to the extent included in determining
Consolidated Net Income (Loss) for such period:
(1) the net income (or net loss) for such period of any
Person which ceased to be a Subsidiary (other than due to merger or
consolidated with another Consolidated Company) during such period (an
"Old Subsidiary");
(2) the net income (or net loss) derived during such period
from any assets sold or otherwise disposed of by any Consolidated
Company during such period ("Old Assets"); and
(3) the sum of the following items to the extent deducted in
determining net income of any Old Subsidiary or derived from any Old
Assets during such period: (x) taxes based on income, (y) Consolidated
Interest Expense, and (z) any items of gain (or plus any items of loss)
which were included in determining such net income and were (aa) not
realized in the ordinary course of business (whether or not classified
as "ordinary" by GAAP), (bb) the result of any sale of assets, or (cc)
resulting from minority investments, together in the case of (aa), (bb)
or (cc), any related provision for taxes included in such net income
with respect thereto.
For purposes of calculating any financial definitions based upon Consolidated
EBIT, the addition or subtraction of any other financial definitions to or from
Consolidated EBIT shall be calculated with appropriate adjustment for New
Subsidiaries, New Assets, Old Subsidiaries and Old Assets as is consistent with
this definition.
"Consolidated EBITDA" shall mean for any fiscal period of
Intermet, an amount equal to the sum of Consolidated EBIT plus depreciation and
amortization expense to the extent deducted in determining Consolidated Net
Income (Loss), determined on a consolidated basis in accordance with GAAP.
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"Consolidated EBITR" shall mean, for any fiscal period of
Intermet, an amount equal to the sum of Consolidated EBIT plus Consolidated
Rental Expense for such period.
"Consolidated Interest Expense" shall mean, for any fiscal
period of Intermet, total interest expense of the Consolidated Companies
(including without limitation, interest expense attributable to capitalized
leases in accordance with GAAP, all commissions, discounts and other fees and
charges owed with respect to bankers acceptance financing, and total interest
expense (whether shown as interest expense or as loss and expenses on sale of
receivables) under a receivables purchase facility) determined on a consolidated
basis in accordance with GAAP.
"Consolidated Net Income (Loss)" shall mean, for any fiscal
period of Intermet, the net income (or loss) of the Consolidated Companies on a
consolidated basis for such period (taken as a single accounting period)
determined in conformity with GAAP, but excluding therefrom (to the extent
otherwise included therein) (i) any income or loss of any Person accrued prior
to the date such Person becomes a Subsidiary of Intermet or is merged into or
consolidated with any Consolidated Company or all or substantially all of such
Person's assets are acquired by any Consolidated Company, and (ii) the income of
any Consolidated Company to the extent that the declaration or payment of
dividends or similar distributions by such Consolidated Company of that income
is not at the time permitted by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation.
"Consolidated Net Worth" shall mean, as of any date of
determination, Shareholders' Equity of Intermet.
"Consolidated Rental Expense" shall mean, for any fiscal
period of Intermet, the operating lease expense of the Consolidated Companies
determined in accordance with GAAP for leases with an initial term greater than
one year, as disclosed in the notes to Intermet's consolidated financial
statements of the Consolidated Companies, determined on a consolidated basis in
accordance with GAAP.
"Contractual Obligation" of any Person shall mean any
provision of any security issued by such Person or of any agreement, instrument
or undertaking under which such Person is obligated or by which it or any of the
property owned by it is bound.
"Credit Documents" shall mean, collectively, this Agreement,
the Notes, the Letters of Credit, the Guaranty Agreements, the Pledge
Agreements, and all other Security Documents, if any.
"Credit Parties" shall mean, collectively, each of Intermet,
the Guarantors, and every other Person who from time to time executes a Security
Document with respect to all or any portion of the Obligations.
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"Default" shall mean any condition or event which, with
notice or lapse of time or both, would constitute an Event of Default.
"Dollar" and "U.S. Dollar" and the sign "$" shall mean
lawful money of the United States of America.
"Eligible Assignee" shall mean (i) a commercial bank
organized under the laws of the United States, or any state thereof, having
total assets in excess of $1,000,000,000 or any commercial finance or asset
based lending Affiliate of any such commercial bank and (ii) any Lender, in each
case, which has the Minimum Required Rating, unless otherwise agreed by the
Agent.
"Environmental Laws" shall mean all federal, state, local
and foreign statutes and codes or regulations, rules or ordinances issued,
promulgated, or approved thereunder, now or hereafter in effect (including,
without limitation, those with respect to asbestos or asbestos containing
material or exposure to asbestos or asbestos containing material), relating to
pollution or protection of the environment and relating to public health and
safety, relating to (i) emissions, discharges, releases or threatened releases
of pollutants, contaminants, chemicals or industrial toxic or hazardous
constituents, substances or wastes, including without limitation, any Hazardous
Substance, petroleum including crude oil or any fraction thereof, any petroleum
product or other waste, chemicals or substances regulated by any Environmental
Law into the environment (including without limitation, ambient air, surface
water, ground water, land surface or subsurface strata), or (ii) the
manufacture, processing, distribution, use, generation, treatment, storage,
disposal, transport or handling of any Hazardous Substance, petroleum including
crude oil or any fraction thereof, any petroleum product or other waste,
chemicals or substances regulated by any Environmental Law, and (iii)
underground storage tanks and related piping, and emissions, discharges and
releases or threatened releases therefrom, such Environmental Laws to include,
without limitation (i) the Clean Air Act (42 U.S.C. Section 7401 et seq.), (ii)
the Clean Water Act (33 U.S.C. Section 1251 et seq.), (iii) the Resource
Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.), (iv) the Toxic
Substances Control Act (15 U.S.C. Section 2601 et seq.), (v) the Comprehensive
Environmental Response Compensation and Liability Act, as amended by the
Superfund Amendments and Reauthorization Act (42 U.S.C. Section 9601 et seq.),
and (vi) all applicable national and local laws or regulations with respect to
environmental control (including applicable laws of the Federal Republic of
Germany or any applicable international agreements).
"ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended and in effect from time to time.
"ERISA Affiliate" shall mean, with respect to any Person,
each trade or business (whether or not incorporated) which is a member of a
group of which that Person is a member and which is under common control within
the meaning of the regulations promulgated under Section 414 of the Tax Code.
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"Eurodollar Advance" shall mean an Advance made or
outstanding as a Syndicated Loan bearing interest based on the Adjusted LIBO
Rate.
"Event of Default" shall have the meaning provided in
Article VIII.
"Exchange Act" shall mean the Securities Exchange Act of
1934, as amended from time to time, and any successor statute thereto.
"Executive Officer" shall mean with respect to any Person,
the President, Chief Executive Officer, Vice Presidents, Chief Financial
Officer, Treasurer, Secretary and any Person holding comparable offices or
duties.
"Facility" or "Facilities" shall mean the Commitments, or
the Bid Rate subfacility or the Letter of Credit facility, as the context may
indicate.
"Federal Funds Rate" shall mean for any period, a
fluctuating interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions with
member banks of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of Atlanta, or, if such rate
is not so published for any day which is a Business Day, the average of the
quotations for such day on such transactions received by the Agent from three
Federal funds brokers of recognized standing selected by the Agent.
"Fixed Charge Coverage Ratio" shall mean, as of the last day
of any fiscal quarter of Intermet, the ratio of (A) Consolidated EBITR to (B)
the sum of the amounts of (i) Consolidated Interest Expense, and (ii)
Consolidated Rental Expense, in each case, calculated with respect to the
immediately preceding four fiscal quarters ending on such date.
"Foreign Plan" shall mean any pension, profit sharing,
deferred compensation, or other employee benefit plan, program or arrangement
maintained by any Foreign Subsidiary which, under applicable local law, is
required to be funded through a trust or other funding vehicle, but shall not
include any benefit provided by a foreign government or its agencies.
"Foreign Subsidiary" shall mean each Consolidated Company
that is organized under the laws of a jurisdiction other than the United States
of America or any State thereof.
"Funded Debt" shall mean all Indebtedness for money
borrowed, Indebtedness evidenced or secured by purchase money Liens, capitalized
leases, conditional sales contracts and similar title retention debt
instruments, whether designated as long term or current debt under GAAP. The
calculation of Funded Debt shall include (i) all Funded Debt of the
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Consolidated Companies, plus (ii) all Funded Debt of other Persons to the extent
guaranteed by a Consolidated Company, to the extent supported by a letter of
credit issued for the account of a Consolidated Company, or as to which and to
the extent which a Consolidated Company or its assets otherwise have become
liable for payment thereof, plus (iii) the redemption amount with respect to the
stock of any Consolidated Company required to be redeemed during the next
succeeding twelve months.
"GAAP" shall mean generally accepted accounting principles
set forth in the opinions and pronouncements of the Accounting Principles Board
of the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession, which are applicable to the circumstances as of the
date of determination.
"Guarantors" shall mean, collectively, Lynchburg Foundry
Company, Ironton Iron, Inc., Northern Castings Corporation, Intermet
International, Inc., New River Castings Company, Alexander City Castings
Company, Inc. and all other domestic Subsidiaries formed or acquired after the
Closing Date unless otherwise agreed by the Required Lenders pursuant to Section
6.10.
"Guaranty" shall mean any contractual obligation, contingent
or otherwise, of a Person with respect to any Indebtedness or other obligation
or liability of another Person, including without limitation, any such
Indebtedness, obligation or liability directly or indirectly guaranteed,
endorsed, co-made or discounted or sold with recourse by that Person, or in
respect of which that Person is otherwise directly or indirectly liable,
including contractual obligations (contingent or otherwise) arising through any
agreement to purchase, repurchase, or otherwise acquire such Indebtedness,
obligation or liability or any security therefor, or any agreement to provide
funds for the payment or discharge thereof (whether in the form of loans,
advances, stock purchases, capital contributions or otherwise), or to maintain
solvency, assets, level of income, or other financial condition, or to make any
payment other than for value received. The amount of any Guaranty shall be
deemed to be an amount equal to the stated or determinable amount of the primary
obligation in respect of which guaranty is made or, if not so stated or
determinable, the maximum reasonably anticipated liability in respect thereof
(assuming such Person is required to perform thereunder) as determined by such
Person in good faith.
"Guaranty Agreements" shall mean, collectively, the Amended
and Restated Guaranty Agreement, dated as of even date herewith, executed by
each of the Guarantors in favor of the Lenders and the Agent, substantially in
the form of Exhibit H as the same may be amended, restated or supplemented from
time to time.
"Hazardous Substances" shall have the meaning assigned to
that term in the Comprehensive Environmental Response Compensation and Liability
Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of
1986.
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"Indebtedness" of any Person shall mean, without duplication
(i) all obligations of such Person which in accordance with GAAP would be shown
on the balance sheet of such Person as a liability (including, without
limitation, obligations for borrowed money and for the deferred purchase price
of property or services, and obligations evidenced by bonds, debentures, notes
or other similar instruments); (ii) all rental obligations under leases required
to be capitalized under GAAP; (iii) all Guaranties of such Person (including
contingent reimbursement obligations under undrawn letters of credit); (iv)
Indebtedness of others secured by any Lien upon property owned by such Person,
whether or not assumed; and (v) obligations or other liabilities under currency
contracts, interest rate hedging contracts, or similar agreements or com
binations thereof to the extent required to be disclosed in accordance with
GAAP.
"Intercreditor Agreement" shall mean that certain
Intercreditor Agreement dated as of December 11, 1992 by and among the Lenders
and The Prudential Insurance Company of America, as amended by that certain
First Amendment to Intercreditor Agreement dated as of August 21, 1995, as
further amended by that certain Second Amendment to Intercreditor Agreement,
dated as of February 23, 1996, as hereafter further amended, modified or
supplemented.
"Interest Period" shall mean (i) as to any Eurodollar
Advances, the interest period selected by Intermet pursuant to Section 3.04(a)
hereof, and (ii) as to any Bid Rate Ad vances, the interest period requested by
Intermet and agreed to by the participating Lenders pursuant to Section 3.04(b)
hereof.
"Intermet" shall mean Intermet Corporation, a Georgia
corporation, its successors and permitted assigns.
"Investment" shall mean, when used with respect to any
Person, any direct or indirect advance, loan or other extension of credit (other
than the creation of receivables in the ordinary course of business) or capital
contribution by such Person (by means of transfers of property to others or
payments for property or services for the account or use of others, or
otherwise) to any Person, or any direct or indirect purchase or other
acquisition by such Person of, or of a beneficial interest in, capital stock,
partnership interests, bonds, notes, debentures or other securities issued by
any other Person, in each case, other than an Acquisition. Each Investment shall
be valued as of the date made; provided that any Investment or portion of an
Investment consisting of Debt shall be valued at the outstanding principal
balance thereof as of the date of determination.
"Lender" or "Lenders" shall mean SunTrust, the other banks
and lending institutions listed on the signature pages hereof, and each assignee
thereof, if any, pursuant to Section 10.06(c).
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"Lending Office" shall mean for each Lender the office such
Lender may designate in writing from time to time to Intermet and the Agent with
respect to each Type of Loan.
"Letter of Credit Fee" shall have the meaning set forth in
Section 3.05(b).
"Letters of Credit" shall mean the letters of credit issued
pursuant to Article II hereof by the Agent for the account of Intermet pursuant
to the Commitments.
"Letter of Credit Obligations" shall mean, with respect to
Letters of Credit, as at any date of determination, the sum of (a) the maximum
aggregate amount which at such date of determination is available to be drawn by
the beneficiaries thereof (assuming the conditions for drawing thereunder have
been met) under all Letters of Credit then outstanding, plus (b) the aggregate
amount of all drawings under Letters of Credit honored by the Agent not
theretofore reimbursed by Intermet.
"Leverage Ratio" shall mean, as of any date of
determination, the ratio, expressed as a percentage, of Funded Debt to Total
Capitalization for the Consolidated Companies.
"LIBOR" shall mean, for any Interest Period, with respect to
Eurodollar Advances under the Commitments, the offered rate for deposits in
Dollars, for a period comparable to the Interest Period and in an amount
comparable to the Agent's portion of such Advances, appearing on Telerate Page
3750 as of 11:00 AM (London, England time) on the day that is two Business Days
prior to the first day of the Interest Period. If two or more of such rates
appear on such Telerate Page, the rate shall be the arithmetic mean of such
rates. If the foregoing rate is unavailable from Telerate for any reason, then
such rate shall be determined by the Agent from the Reuters Screen LIBO Page or,
if such rate is also unavailable on such service, then on any other interest
rate reporting service of recognized standing designated in writing by the Agent
to Intermet and the other Lenders; in any such case rounded, if necessary, to
the next higher 1/100 of 1.0%, if the rate is not such a multiple.
"Lien" shall mean any mortgage, pledge, security interest,
lien, charge, hypothecation, assignment, deposit arrangement, title retention,
preferential property right, trust or other arrangement having the practical
effect of the foregoing and shall include the interest of a vendor or lessor
under any conditional sale agreement, capitalized lease or other title retention
agreement.
"Loans" shall mean, collectively, the Syndicated Loans and
the Bid Rate Loans.
"Margin Regulations" shall mean Regulation G, Regulation T,
Regulation U and Regulation X of the Board of Governors of the Federal Reserve
System, as the same may be in effect from time to time.
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"Margin Stock" shall have the meaning set forth in the
Margin Regulations.
"Materially Adverse Effect" shall mean any materially
adverse change in (i) the business, results of operations, financial condition,
assets or prospects of the Consolidated Companies, taken as a whole, (ii) the
ability of Intermet to perform its obligations under this Agreement, (iii) the
ability of the other Credit Parties (taken as a whole) to perform their
respective obligations under the Credit Documents, or (iv) the perfection or
priority of the Liens granted in favor of the Agent pursuant to the Security
Documents.
"Maturity Date" shall mean the earlier of (i) November 14,
1999, and (ii) the date on which all amounts outstanding under this Agreement
have been declared or have automatically become due and payable pursuant to the
provisions of Article VIII.
"Minimum Required Rating" shall mean (i) from Moody's, a
long-term deposit rating of A1 or higher (or comparable rating in the event
Moody's hereafter modifies its rating system for long-term deposits of
commercial banks), and (ii) from S&P, a long-term deposit rating of A+ or higher
(or comparable rating in the event S&P hereafter modifies its rating system for
long-term deposits of commercial banks).
"Moody's" shall mean Xxxxx'x Investors Service, Inc., and
its successors and assigns.
"Multiemployer Plan" shall have the meaning set forth in
Section 4001(a)(3) of ERISA.
"Net Fixed Assets" shall mean, as of any date of
determination, the net property, plant and equipment of the Consolidated
Companies determined in accordance with GAAP and as reflected on the balance
sheet of Intermet.
"Note Purchase Agreement" shall mean that certain Amended
and Restated Note Purchase Agreement dated as of March 21, 1996, by and between
Intermet and The Prudential Insurance Company of America, as amended, modified
or supplemented.
"Notes" shall mean, collectively, the Revolving Credit Notes
and the Bid Facility Notes.
"Notice of Borrowing" shall have the meaning provided in
Section 3.01(a)(i).
"Notice of Continuation/Conversion" shall have the meaning
provided in Section 3.01(b)(i).
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"Obligations" shall mean all amounts owing to the Agent or
any Lender pursuant to the terms of this Agreement or any other Credit Document,
including without limitation, all Loans (including all principal and interest
payments due thereunder), all Letter of Credit Obligations, fees, expenses,
indemnification and reimbursement payments, indebtedness, liabilities, and
obligations of the Credit Parties, direct or indirect, absolute or contingent,
liquidated or unliquidated, now existing or hereafter arising, together with all
renewals, extensions, modifications or refinancings thereof.
"Overnight Advances" shall mean Advances hereunder bearing
interest based upon the Overnight Rate.
"Overnight Rate" shall mean the rate per annum determined by
the Agent in good faith as of 11:00 A.M. (local time for the Agent) on each
Business Day to be the rate at which overnight loans are made available to the
Agent by the Federal Reserve Bank of Atlanta, with such rate to remain in effect
until redetermined by the Agent on the next Business Day.
"Payment Office" shall mean the office specified as the
"Payment Office" for the Agent on the signature page of the Agent, or such other
location as to which the Agent shall have given written notice to Intermet and
the Lenders.
"PBGC" shall mean the Pension Benefit Guaranty Corporation,
or any successor thereto.
"Permitted Liens" shall mean those Liens expressly permitted
by Section 7.02.
"Person" shall mean any individual, limited liability
company, partnership, firm, corporation, association, joint venture, trust or
other entity, or any government or political subdivision or agency, department
or instrumentality thereof.
"Plan" shall mean any "employee benefit plan" (as defined in
Section 3(3) of ERISA), including, but not limited to, any defined benefit
pension plan, profit sharing plan, money purchase pension plan, savings or
thrift plan, stock bonus plan, employee stock ownership plan, Multiemployer
Plan, or any plan, fund, program, arrangement or practice providing for medical
(including post-retirement medical), hospitalization, accident, sickness,
disability, or life insurance benefits, but shall exclude any Foreign Plan.
"Pledge Agreement" shall mean, collectively, any pledge
agreement providing for the grant of first priority Liens on the Pledged Stock.
"Pledged Stock" shall mean, collectively, 49% of the issued
and outstanding capital stock, together with all warrants, stock options, and
other purchase and conversion rights with respect to such capital stock, of all
Subsidiaries that are Foreign Subsidiaries directly owned by Intermet and/or
owned by one or more other Subsidiaries organized in the United States
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(other than Columbus Neunkirchen, Intermet Machining GmbH, and Intermet Holding
Deutschland GmbH).
"Prior Credit Agreement" shall have the meaning set forth in
the recitals hereof.
"Pro Rata Share" shall mean, with respect to Commitments,
each Syndicated Loan and all Letters of Credit to be made by and each payment
(including, without limitation, any payment of principal, interest or fees) to
be made to each Lender, the percentage designated as such Lender's Pro Rata
Share of such Commitments, set forth under the name of such Lender on the
respective signature page for such Lender, as such percentage may change based
upon amendments and assignments hereunder.
"Prudential" shall mean The Prudential Insurance Company of
America.
"Rating Agencies" shall mean, collectively, Moody's and S&P.
"Regulation D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System, as the same may be in effect from time
to time.
"Required Lenders" shall mean at any time prior to the
termination of the Commitments, Lenders holding at least 66-2/3% of the then
aggregate amount of the Commitments, or, following the termination of the
Commitments hereunder, Lenders holding at least 66-2/3% of the sum of the
aggregate outstanding Loans and Letter of Credit Obligations.
"Requirement of Law" for any person shall mean the articles
or certificate of incorporation and by-laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation, or
determination of an arbitrator or a court or other governmental authority, in
each case applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject.
"Reuters Screen" shall mean, when used in connection with
any designated page and LIBOR, the display page so designated on the Reuters
Monitor Money Rates Service (or such other page as may replace that page on that
service for the purpose of displaying rates comparable to LIBOR).
"Revolving Credit Notes" shall mean, collectively, the
promissory notes evidencing the Syndicated Loans in the form attached hereto as
Exhibit A, either as originally executed or as hereafter amended, modified or
substituted.
"S&P" shall mean Standard & Poor's Rating Services, a
division of The XxXxxx-Xxxx Companies, Inc.
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"Security Documents" shall mean, collectively, the Guaranty
Agreements, the Pledge Agreements, and each other guaranty agreement, mortgage,
deed of trust, security agreement, pledge agreement, or other security or
collateral document guaranteeing or securing the Obligations, as the same may be
amended, restated, or supplemented from time to time.
"Shareholders' Equity" shall mean, with respect to any
Person as at any date of determination, shareholders' equity of such Person
determined on a consolidated basis in conformity with GAAP.
"Solvent" shall mean, as to Intermet or any Guarantor at any
time, that (i) each of the fair value and the present fair saleable value of
such Person's assets (including any rights of subrogation or contribution to
which such Person is entitled, under any of the Loan Documents or otherwise) is
greater than such Person's debts and other liabilities (including contingent,
unmatured and unliquidated debts and liabilities) and the maximum estimated
amount required to pay such debts and liabilities as such debts and liabilities
mature or otherwise become payable; (ii) such Person is able and expects to be
able to pay its debts and other li abilities (including, without limitation,
contingent, unmatured and unliquidated debts and liabilities) as they mature;
and (iii) such Person does not have unreasonably small capital to carry on its
business as conducted and as proposed to be conducted.
"Subordinated Debt" shall mean other Indebtedness of
Intermet subordinated to all obligations of Intermet or any other Credit Party
arising under this Agreement, the Notes, and the Guaranty Agreements on terms
and conditions satisfactory in all respects to the Agent and the Required
Lenders, including without limitation, with respect to interest rates, payment
terms, maturities, amortization schedules, covenants, defaults, remedies, and
subordination provisions, as evidenced by the written approval of the Agent and
Required Lenders.
"Subsidiary" shall mean, with respect to any Person, any
corporation or other entity (including, without limitation, partnerships, joint
ventures, and associations) regardless of its jurisdiction of organization or
formation, at least a majority of the total combined voting power of all classes
of voting stock or other ownership interests of which shall, at the time as of
which any determination is being made, be owned by such Person, either directly
or indirectly through one or more other Subsidiaries.
"Syndicated Loans" shall mean, collectively, all outstanding
Loans made to Intermet by the Lenders pursuant to Section 2.01 hereof.
"Tax Code" shall mean the Internal Revenue Code of 1986, as
amended and in effect from time to time.
"Taxes" shall mean any present or future taxes, levies,
imposts, duties, fees, assessments, deductions, withholdings or other charges of
whatever nature, including without limitation, income, receipts, excise,
property, sales, transfer, license, payroll, withholding, social
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security and franchise taxes now or hereafter imposed or levied by the United
States, or any state, local or foreign government or by any department, agency
or other political subdivision or taxing authority thereof or therein and all
interest, penalties, additions to tax and similar liabilities with respect
thereto.
"Telerate" shall mean, when used in connection with any
designated page and LIBOR, the display page so designated on the Dow Xxxxx
Telerate Service (or such other page as may replace that page on that service
for the purpose of displaying rates comparable to LIBOR).
"Total Assets" shall mean the total assets of the
Consolidated Companies, determined in accordance with GAAP.
"Total Capitalization" shall mean, as of any date of
determination, the sum of Funded Debt and Consolidated Net Worth of the
Consolidated Companies.
"Total Sales" shall mean, for any period of determination,
the total revenues of the Consolidated Companies, determined in accordance with
GAAP.
"Type" of Borrowing shall mean a Borrowing consisting of
Base Rate Advances, Overnight Rate Advances or Eurodollar Advances.
SECTION 1.02. ACCOUNTING TERMS AND DETERMINATION. Unless
otherwise defined or specified herein, all accounting terms shall be construed
herein, all accounting determinations hereunder shall be made, all financial
statements required to be delivered hereunder shall be prepared, and all
financial records shall be maintained in accordance with, GAAP, except that
financial records of Foreign Subsidiaries may be maintained in accordance with
generally accepted accounting principles in effect from time to time in the
jurisdiction of organization of such Foreign Subsidiary; provided, however, that
compliance with the financial covenants and calculations set forth in Section
6.08, Article VII, and elsewhere herein, and in the definitions used in such
covenants and calculations, shall be calculated, made and applied in accordance
with GAAP and such generally accepted accounting principles in such foreign
jurisdictions, as the case may be, as in effect on the date of this Agreement
applied on a basis consistent with the preparation of the financial statements
referred to in Section 5.14 unless and until Intermet and the Required Lenders
enter into an agreement with respect thereto in accordance with Section 10.13.
SECTION 1.03. OTHER DEFINITIONAL TERMS. The words "hereof",
"herein" and "hereunder" and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular provision of
this Agreement, and Article, Section, Schedule, Exhibit and like references are
to this Agreement unless otherwise specified.
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Any of the terms defined in Section 1.01 may, unless the context otherwise
requires, be used in the singular or the plural depending on the reference.
SECTION 1.04. EXHIBITS AND SCHEDULES. All Exhibits and
Schedules attached hereto are by reference made a part hereof.
ARTICLE II.
SYNDICATED LOANS, BID RATE LOANS AND LETTERS OF CREDIT
SECTION 2.01. COMMITMENTS; USE OF PROCEEDS.
(a) Subject to and upon the terms and conditions herein set
forth, each Lender severally agrees to make to Intermet from time to time on and
after the Closing Date, but prior to the Maturity Date, Syndicated Loans in an
aggregate amount outstanding at any time not to exceed such Lender's Commitment
minus such Lender's Pro Rata Share of the Letter of Credit Obligations, subject,
however, to the conditions that (i) at no time shall the sum of the (x) the
outstanding principal amount of all Syndicated Loans, plus (y) the outstanding
principal amount of all Bid Rate Loans, plus (z) the outstanding Letter of
Credit Obligations, exceed the sum of the Commitments, (ii) at no time shall the
sum of the outstanding principal amount of Syndicated Loans comprised of
Overnight Rate Advances exceed $30,000,000, and (iii) at all times shall the
outstanding principal amount of the Syndicated Loans of each Lender equal the
product of each Lender's Pro Rata Share of the Commitments multiplied by the
aggregate outstanding amount of the Syndicated Loans. In addition, at no time
shall the outstanding principal amount of the Bid Rate Loans outstanding under
this Agreement exceed $100,000,000. Intermet shall be entitled to repay and
reborrow Syndicated Loans in accordance with the provisions hereof.
(b) Each Syndicated Loan shall, at the option of Intermet,
be made or continued as, or converted into, part of one or more Borrowings that
shall consist entirely of Base Rate Advances, Eurodollar Advances, or subject to
the limitation set forth in subsection (a) above, Overnight Rate Advances. The
aggregate principal amount of each Borrowing of Syndicated Loans shall be not
less than $5,000,000 or a greater integral multiple of $1,000,000, provided that
each Borrowing of Syndicated Loans comprised of Base Rate Advances or Overnight
Rate Advances shall be not less than $1,000,000 or a greater integral multiple
of $100,000. At no time shall the number of outstanding Borrowings comprised of
Eurodollar Advances exceed twelve.
(c) The proceeds of Loans shall be used solely for the
following purposes:
(i) On the Closing Date all amounts outstanding
pursuant to the Prior Credit Agreement and the letters of credit issued
thereunder shall be deemed to be outstanding hereunder and the Lenders
shall make and receive such payments as the
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Agent shall direct to pay out the exiting lenders under the Prior
Credit Agreement and to adjust the Pro Rata Shares of the Lenders to
reflect the terms of this Agreement; and
(ii) All other amounts shall be used as working
capital and for other general corporate purposes, including
Acquisitions, Investments, the repayment of Indebtedness and the
funding of capital expenditures of the Consolidated Companies.
SECTION 2.02. NOTES; REPAYMENT OF PRINCIPAL.
(a) Intermet's obligations to pay the principal of, and
interest on, the Syndicated Loans to each Lender shall be evidenced by the
records of the Agent and such Lender and by the Revolving Credit Note payable to
such Lender (or the assignor of such Lender) completed in conformity with this
Agreement.
(b) All outstanding principal amounts under the Commitments
shall be due and payable in full on the Maturity Date.
SECTION 2.03. VOLUNTARY REDUCTION OF COMMITMENTS. Upon at
least three (3) Business Days' prior telephonic notice (promptly confirmed in
writing) to the Agent, Intermet shall have the right, without premium or
penalty, to terminate the unutilized Commitments, in part or in whole, provided
that (i) any such termination shall apply to proportionately and permanently
reduce the Commitments of each of the Lenders, and (ii) any partial termination
pursuant to this Section 2.03 shall be in an amount of at least $5,000,000 and
integral multiples of $1,000,000.
SECTION 2.04. LETTER OF CREDIT FACILITY. Subject to, and
upon the terms and conditions set forth herein, Intermet may request, in
accordance with the provisions of this Section 2.04 and Section 2.05 and the
other terms of this Agreement, that on and after the Closing Date but prior to
the Maturity Date, the Agent issue a Letter or Letters of Credit for the account
of Intermet; provided that the application for such Letters of Credit issued by
the Agent shall be in the form substantially identical to Exhibit C attached
hereto, provided further that (i) no Letter of Credit shall have an expiration
date that is later than one year after the date of issuance thereof (provided
that a Letter of Credit may provide that it is extendible for consecutive one
year periods); (ii) in no event shall any Letter of Credit issued by the Agent
have an expiration date (or be extended so that it will expire) later than the
Maturity Date; and (iii) Intermet shall not request that the Agent issue any
Letter of Credit, if, after giving effect to such issuance, the sum of the
aggregate Letter of Credit Obligations plus the aggregate outstanding principal
amount of the Syndicated Loans plus the aggregate outstanding principal amount
of the Bid Rate Loans would exceed the Commitments.
SECTION 2.05. NOTICE OF ISSUANCE OF LETTER OF CREDIT;
AGREEMENT TO ISSUE.
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(a) Whenever Intermet desires the issuance of a Letter of
Credit, it shall, in addition to any application and documentation procedures
required by the Agent for the issuance of such Letter of Credit, deliver to the
Agent a written notice no later than 11:00 AM (local time for the Agent) at
least five (5) days in advance of the proposed date of issuance and the Agent
shall promptly forward a copy of such notice to each of the Lenders. Each such
notice shall specify (i) the proposed date of issuance (which shall be a
Business Day); (ii) the face amount of the Letter of Credit; (iii) the
expiration date of the Letter of Credit; and (iv) the name and address of the
beneficiary with respect to such Letter of Credit and shall attach a precise
description of the documentation and a verbatim text of any certificate to be
presented by the beneficiary of such Letter of Credit which would require the
Agent to make payment under the Letter of Credit, provided that the Agent may
require changes in any such documents and certificates in accordance with its
customary letter of credit practices, and provided further, that no Letter of
Credit shall require payment against a conforming draft to be made thereunder on
the same Business Day that such draft is presented if such presentation is made
after 11:00 AM (Atlanta, Georgia time). In determining whether to pay any draft
under any Letter of Credit, the Agent shall be responsible only to determine
that the documents and certificate required to be delivered under its Letter of
Credit have been delivered, and that they comply on their face with the
requirements of the Letter of Credit. Promptly after receiving the notice of
issuance of a Letter of Credit, the Agent shall notify each Lender of such
Lender's respective participation therein, determined in accordance with its
respective Pro Rata Share of the Commitments.
(b) The Agent agrees, subject to the terms and conditions
set forth in this Agreement, to issue for the account of Intermet a Letter of
Credit in a face amount equal to the face amount requested under paragraph (a)
above, following its receipt of a notice required by Section 2.05(a).
Immediately upon the issuance of each Letter of Credit, each Lender shall be
deemed to, and hereby agrees to, have irrevocably purchased from the Agent a
participation in such Letter of Credit and any drawing thereunder in an amount
equal to such Lender's Pro Rata Share of the Commitments multiplied by the face
amount of such Letter of Credit. Upon issuance and amendment or extension of any
Letter of Credit, the Agent shall provide a copy of each such Letter of Credit
issued, amended or extended hereunder to each of the Lenders.
(c) As of the Closing Date, each of the Letters of Credit
set forth on Schedule 7.01 shall be deemed to have been issued by the Agent in
accordance with the terms hereof, each of the Lenders shall be deemed to have
purchased a participation in such Letters of Credit in an amount equal to such
Lender's Pro Rata Share of the Commitments multiplied by the face amount
thereof, and such Letters of Credit shall be governed by the terms hereof.
SECTION 2.06. PAYMENT OF AMOUNTS DRAWN UNDER LETTERS OF
CREDIT.
(a) In the event of any request for a drawing under any
Letter of Credit by the beneficiary thereof, the Agent shall notify Intermet and
the Lenders on or before the date on which the Agent intends to honor such
drawing, and Intermet shall reimburse the Agent on
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the day on which such drawing is honored in an amount, in same day funds, equal
to the amount of such drawing.
(b) Notwithstanding any provision of this Agreement to the
contrary, to the extent that any Letter of Credit or portion thereof remains
outstanding on the Maturity Date, for any reason whatsoever, the parties hereto
hereby agree that the beneficiary or beneficiaries thereof shall be deemed to
have made a drawing of all available amounts pursuant to such Letters of Credit
on the Maturity Date which amount shall be held by the Agent as cash collateral
for its remaining obligations pursuant to such Letters of Credit.
(c) As between Intermet and the Agent, Intermet assumes all
risk of the acts and omissions of, or misuse of, the Letters of Credit issued by
the Agent, by the respective beneficiaries of such Letters of Credit, other than
losses resulting from the gross negligence and willful misconduct of the Agent.
In furtherance and not in limitation of the foregoing but subject to the
exception for the Agent's gross negligence or willful misconduct set forth
above, the Agent shall not be responsible (i) for the form, validity,
sufficiency, accuracy, genuineness or legal effect of any document submitted by
any party in connection with the application for and issuance of such Letters of
Credit, even if it should in fact prove to be in any or all respects
insufficient, inaccurate, fraudulent or forged or otherwise invalid; (ii) for
the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any such Letter of Credit or the rights or
benefits thereunder or proceeds thereof in whole or in part which may prove to
be invalid or ineffective for any reason; (iii) for failure of the beneficiary
of any such Letter of Credit to comply fully with the conditions required in
order to draw upon such Letter of Credit; (iv) for errors, omissions,
interruptions or delays in transmission or delivery of any messages, by mail,
cable, telegraph, telex, telecopy or otherwise; (v) for good faith errors in
interpretation of technical terms; (vi) for any loss or delay in the
transmission or otherwise of any document required in order to make a drawing
under any such Letter of Credit or the proceeds thereof; (vii) for the
misapplication by the beneficiary of any such Letter of Credit; and (viii) for
any consequences arising from causes beyond the control of the Agent.
SECTION 2.07. PAYMENT BY LENDERS. In the event that Intermet
shall fail to reimburse the Agent as provided in Section 2.06, the Agent shall
promptly notify each Lender of the unreimbursed amount of such drawing and of
such Lender's respective participation therein. Each Lender shall make available
to the Agent an amount equal to its respective participation, in Dollars and in
immediately available funds, at the office of the Agent specified in such notice
not later than 1:00 P.M. (Atlanta, Georgia time) on the Business Day after the
date notified by the Agent and such amount shall be deemed to be outstanding
hereunder as a Base Rate Loan. Each Lender shall be obligated to make such Base
Rate Loan hereunder regardless of whether the conditions precedent in Article IV
are satisfied and regardless of whether such Base Rate Loan complies with the
minimum borrowing requirements hereunder. In the event that any such
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Lender fails to make available to the Agent the amount of such Lender's
participation in such Letter of Credit, the Agent shall be entitled to recover
such amount on demand from such Lender together with interest as provided for in
Section 3.02. The Agent shall distribute to each Lender which has paid all
amounts payable under this Section with respect to any Letter of Credit, such
Lender's Pro Rata Share of all payments received by the Agent from Intermet in
reimbursement of drawings honored by the Agent under such Letter of Credit when
such payments are received.
SECTION 2.08 BID RATE LOANS. Subject to the terms and
conditions hereof, Intermet may request, and each Lender, in its sole
discretion, may agree to make Bid Rate Advances in accordance with the following
procedure; provided, that, (x) at no time shall the sum of the aggregate
outstanding principal amount of the Bid Rate Loans exceed $100,000,000, and (y)
at no time shall the sum of the outstanding principal amount of the Loans plus
the Letter of Credit Obligations exceed the sum of Commitments:
(a) In order to request Bid Rate Bids, Intermet shall
telecopy to the Agent a duly completed Bid Request in the form of Exhibit D
attached hereto (which may request not more than two Bid Rate Bids), to be
received by the Agent not later than 11:00 a.m. (local time for the Agent) time,
on the Business Day of the proposed Bid Rate Loan or Loans; provided that, such
Bid Request shall not be deemed to have been received by the Agent in a timely
manner unless Intermet shall also have notified the Agent by telephone
(excluding voice mail notification) of such Bid Request by the time specified
above. A Bid Request that does not conform substantially to the format of
Exhibit D may be rejected in the Agent's sole discretion, and the Agent shall
notify Intermet of such rejection by telecopy not later than 12:00 noon
(Atlanta, Georgia time) on the date of receipt. Such request shall in each case
refer to this Agreement and specify (i) the date of such Borrowing or Borrowings
(which shall be a Business Day) and (ii) the aggregate principal amount thereof
which shall be in a minimum principal amount of $1,000,000 and in an integral
multiple of $100,000, and (iii) the Interest Period with respect thereto.
Promptly after its receipt of a Bid Request that is not rejected as aforesaid,
the Agent shall invite by telecopy (substantially in the form set forth in
Exhibit E attached hereto) the Lenders to bid, on the terms and conditions of
this Agreement, to make Bid Rate Advances pursuant to the Bid Request.
(b) Each Lender may, in its sole discretion, make one or
more Bid Rate Bids (but not more than two) to Intermet responsive to a Bid
Request. Each Bid Rate Bid by a Lender must be received by the Agent via
telecopy, substantially in the form of Exhibit F attached hereto, not later than
12:00 noon (local time for the Agent) on the Business Day of the proposed Bid
Rate Loan. Multiple bids (not to exceed two per Lender) will be accepted by the
Agent. Bid Rate Bids that do not conform substantially to the format of Exhibit
F may be rejected by the Agent acting in consultation with Intermet, and the
Agent shall notify the Lender making such nonconforming bid of such rejection as
soon as practicable. Each Bid Rate Bid shall refer to this Agreement and specify
(i) the principal amount (which shall be in a minimum principal amount of
$1,000,000 and in an integral multiple of $100,000 and which may equal the
entire principal amount of the Bid Rate Loan requested by Intermet) of the Bid
Rate Advance or
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Advances that the Lender is willing to make to Intermet, (ii) the Bid Rate or
Rates at which the Lender is prepared to make the Bid Rate Advance or Advances,
and (iii) the Interest Period and the last day thereof. If any Lender shall
elect not to make a Bid Rate Bid, such Lender shall so notify the Agent via
telecopy by the time specified above for submitting a Bid Rate Bid; provided,
however, that failure by any Lender to give such notice shall not cause such
Lender to be obligated to make any Bid Rate Advance as part of such Bid Rate
Loan. A Bid Rate Bid submitted by a Lender pursuant to this paragraph (b) shall
be irrevocable (absent manifest error).
(c) The Agent shall promptly notify Intermet by telecopy of
all the Bid Rate Bids made, the Bid Rate and the principal amount of each Bid
Rate Advance in respect of which a Bid Rate Bid was made and the identity of the
Lender that made each bid. The Agent shall send a copy of all Bid Rate Bids to
Intermet for its records as soon as practicable after completion of the bidding
process set forth in this Section 2.08.
(d) Intermet may, in its sole and absolute discretion,
subject only to the provisions of this paragraph (d), accept or reject any Bid
Rate Bid referred to in paragraph (c) above. Intermet shall notify the Agent by
telephone, confirmed by telecopy in the form of a Bid Accept/Reject Letter,
whether and to what extent it has decided to accept or reject any of or all the
bids referred to in paragraph (c) above not later than 12:30 p.m. (local time
for the Agent) on the Business Day of the proposed Bid Loan; provided, however,
that (i) the failure by Intermet to give such notice shall be deemed to be a
rejection of all the bids referred to in paragraph (c) above, (ii) Intermet
shall not accept a bid made at a particular Bid Rate if Intermet has decided to
reject a bid made at a lower Bid Rate, (iii) the aggregate amount of the Bid
Rate Bids accepted by Intermet shall not exceed the principal amount specified
in the Bid Request, (iv) if Intermet shall accept a bid or bids made at a
particular Bid Rate but the amount of such bid or bids shall cause the total
amount of bids to be accepted by Intermet to exceed the amount specified in the
Bid Request, then Intermet shall accept a portion of such bid or bids in an
amount equal to the amount specified in the Bid Request less the amount of all
other Bid Rate Bids accepted with respect to such Bid Request, which acceptance,
in the case of multiple bids at the same Bid Rate, shall be made pro rata in
accordance with the amount of each such bid at such Bid Rate, and (v) except
pursuant to clause (iv) above, no bid shall be accepted for a Bid Rate Loan
unless such Bid Rate Loan is in a minimum principal amount of $1,000,000 and an
integral multiple of $100,000; provided further, however, that if a Bid Loan
must be in an amount less than $1,000,000 because of the provisions of clause
(iv) above, such Bid Loan may be for a minimum of $500,000 or any integral
multiple thereof, and in calculating the pro rata allocation of acceptances of
portions of multiple bids at a particular Bid Rate pursuant to clause (iv) the
amounts shall be rounded to integral multiples of $500,000 in a manner which
shall be in the discretion of Intermet. A notice given by Intermet pursuant to
this paragraph (d) shall be irrevocable.
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(e) The Agent shall promptly notify each bidding Lender
whether or not its Bid Rate Bid has been accepted (and if so, in what amount and
at what Bid Rate) and shall notify each Lender as to the amount, Interest Period
and Bid Rate of each Bid Rate Bid accepted by Intermet by telecopy sent by the
Agent, and each successful bidder will thereupon become bound, subject to the
other applicable conditions hereof, to make the Bid Rate Loan in respect of
which its bid has been accepted.
(f) Intermet shall not submit a Bid Request more than twice
in any seven day period.
(g) If the Agent shall elect to submit a Bid Rate Bid in its
capacity as a Lender, it shall submit such bid directly to Intermet one half of
an hour earlier than the earliest time at which the other Lenders are required
to submit their bids to the Agent pursuant to paragraph (b) above.
(h) Each Lender participating in any Bid Rate Loan shall
make its Bid Rate Advance available to the Agent on the date specified in the
Bid Request at the time and in the manner and subject to the provisions
specified in Section 3.02.
(i) The Bid Rate Advances of each Lender shall be evidenced
by its Bid Facility Note and shall be due and payable in full on the Maturity
Date unless sooner accelerated pursuant to Article VIII hereof.
ARTICLE III.
GENERAL LOAN AND LETTER OF CREDIT TERMS
SECTION 3.01. FUNDING NOTICES.
(a) (i) Whenever Intermet desires to obtain a Syndicated
Loan with respect to the Commitments (other than one resulting from a conversion
or continuation pursuant to Section 3.01(b)(i)), it shall give the Agent prior
written notice (or telephonic notice promptly confirmed in writing) of such
Borrowing (a "Notice of Borrowing"), such Notice of Borrowing to be given prior
to 11:00 AM (local time for the Agent) at its Payment Office (x) three Business
Days prior to the requested date of such Borrowing in the case of Eurodollar
Advances, and (y) on the date of such Borrowing (which shall be a Business Day)
in the case of a Borrowing consisting of Overnight Rate Advances or Base Rate
Advances. Notices received after 11:00 AM shall be deemed received on the next
Business Day. Each Notice of Borrowing shall be irrevocable and shall specify
the aggregate principal amount of the Borrowing, the date of Borrowing (which
shall be a Business Day), and whether the Borrowing is to consist of Base Rate
Advances, Overnight Rate Advances or Eurodollar Advances and (in the case of
Eurodollar Advances) the Interest Period to be applicable thereto.
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(ii) Whenever Intermet desires to obtain a Bid
Rate Loan, it shall notify the Agent in accordance with the procedure set forth
in Section 2.08 hereof.
(b) (i) Whenever Intermet desires to convert all or a
portion of an outstanding Borrowing under the Commitments, which Borrowing
consists of Base Rate Advances, Overnight Rate Advances or Eurodollar Advances,
into one or more Borrowings consisting of Advances of another Type, or to
continue outstanding a Borrowing consisting of Eurodollar Advances for a new
Interest Period, it shall give the Agent at least three Business Days' prior
written notice (or telephonic notice promptly confirmed in writing) of each such
Borrowing to be converted into or continued as Eurodollar Advances. Such notice
(a "Notice of Conversion/Continuation") shall be given prior to 11:00 AM (local
time for the Agent) on the date specified at the Payment Office of the Agent.
Each such Notice of Conversion/Continuation shall be irrevocable and shall
specify the aggregate principal amount of the Advances to be converted or
continued, the date of such conversion or continuation, whether the Advances are
being converted into or continued Eurodollar Advances and, if so, the Interest
Period applicable thereto. If, upon the expiration of any Interest Period in
respect of any Borrowing, Intermet shall have failed to deliver the Notice of
Conversion/Continuation, Intermet shall be deemed to have elected to convert or
continue such Borrowing to a Borrowing consisting of Base Rate Advances. So long
as any Executive Officer of Intermet has knowledge that any Default or Event of
Default shall have occurred and be continuing, no Borrowing may be converted
into or continued as (upon expiration of the current Interest Period) Eurodollar
Advances unless the Agent and each of the Lenders shall have otherwise consented
in writing. No conversion of any Borrowing of Eurodollar Advances shall be
permitted except on the last day of the Interest Period in respect thereof.
(ii) Upon the expiration of the applicable
Interest Period with respect to Bid Rate Loans, Intermet shall repay such Loan
in full in accordance with the terms hereof.
(c) Without in any way limiting Intermet's obligation to
confirm in writing any telephonic notice, the Agent may act without liability
upon the basis of telephonic notice be lieved by the Agent in good faith to be
from Intermet prior to receipt of written confirmation. In each such case,
Intermet hereby waives the right to dispute the Agent's record of the terms of
such telephonic notice.
(d) The Agent shall promptly give each Lender notice by
telephone (confirmed in writing) or by telex, telecopy or facsimile transmission
of the matters covered by the notices given to the Agent pursuant to this
Section 3.01 with respect to the Commitments.
SECTION 3.02. DISBURSEMENT OF FUNDS.
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(a) No later than 12:00 Noon (local time for the Agent) on
the date of each Syndicated Loan pursuant to the Commitments (other than one
resulting from a conversion or continuation pursuant to Section 3.01(b)(i)),
each Lender will make available its Pro Rata Share of such Syndicated Loan in
immediately available funds at the Payment Office of the Agent. The Agent will
make available to Intermet the aggregate of the amounts (if any) so made
available by the Lenders to the Agent in a timely manner by crediting such
amounts to Intermet's demand deposit account maintained with the Agent or at
Intermet's option, effecting a wire transfer of such amounts to an account
specified by Intermet, by the close of business on such Business Day. In the
event that the Lenders do not make such amounts available to the Agent by the
time prescribed above, but such amount is received later that day, such amount
may be credited to Intermet in the manner described in the preceding sentence on
the next Business Day (with interest on such amount to begin accruing hereunder
on such next Business Day).
(b) No later than 3:00 P.M. (local time for the Agent) on
the date of each Bid Rate Loan, the Lenders participating in such Bid Rate Loan
will make available the amount of its Bid Rate Advance in immediately available
funds at the Payment Office of the Agent on the date of such Bid Rate Loan.
(c) Unless the Agent shall have been notified by any Lender
prior to the date of a Borrowing that such Lender does not intend to make
available to the Agent such Lender's portion of the Borrowing to be made on such
date, the Agent may assume that such Lender has made such amount available to
the Agent on such date and the Agent may make available to Intermet a
corresponding amount. If such corresponding amount is not in fact made available
to the Agent by such Lender on the date of Borrowing, the Agent shall be
entitled to recover such corresponding amount on demand from such Lender
together with interest at the Federal Funds Rate. If such Lender does not pay
such corresponding amount forthwith upon the Agent's demand therefor, the Agent
shall promptly notify Intermet, and Intermet shall immediately pay such
corresponding amount to the Agent together with interest at the rate specified
for the Borrowing. Nothing in this subsection shall be deemed to relieve any
Lender from its obligation to fund its Commitment or Bid Rate Loans hereunder or
to prejudice any rights which Intermet may have against any Lender as a result
of any default by such Lender hereunder.
(d) All Syndicated Loans under the Commitments shall be
loaned by the Lenders on the basis of their Pro Rata Share of the Commitments.
All Bid Rate Loans shall be loaned by the Lenders participating therein in
accordance with their respective pro rata shares thereof as determined in
accordance with Section 2.08 with respect to each Bid Loan. No Lender shall be
responsible for any default by any other Lender in its obligations hereunder,
and each Lender shall be obligated to make the Loans provided to be made by it
hereunder, regardless of the failure of any other Lender to fund its Commitments
or Bid Rate Loans hereunder.
SECTION 3.03. INTEREST.
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(a) Intermet agrees to pay interest in respect of all unpaid
principal amounts of Syndicated Loans from the respective dates such principal
amounts were advanced to maturity (whether by acceleration, notice of prepayment
or otherwise) at rates per annum equal to the applicable rates indicated below:
(i) For Base Rate Advances--The Base Rate in
effect from time to time;
(ii) For Eurodollar Advances--The relevant
Adjusted LIBO Rate plus the Applicable Margin; or
(iii) For Overnight Rate Advances -- The relevant
Overnight Rate plus one and one-half of one percent (1.5%) per annum;
(b) Intermet agrees to pay interest in respect of all unpaid
principal amounts of the Bid Rate Loans made to Intermet from the respective
dates such principal amounts were advanced to maturity (whether by acceleration,
notice of prepayment or otherwise) at the Bid Rate established for such Loan
pursuant to Section 2.08;
(c) Overdue principal and, to the extent not prohibited by
applicable law, overdue interest, in respect of the Loans, and all other overdue
amounts owing hereunder, shall bear interest from each date that such amounts
are overdue:
(i) in the case of overdue principal and interest
with respect to all Loans outstanding as Eurodollar Advances and Bid
Rate Advances, at the rate otherwise applicable for the then-current
Interest Period plus an additional two percent (2.0%) per annum;
thereafter at the rate in effect for Base Rate Advances plus an
additional two percent (2.0%) per annum; and
(ii) in the case of overdue principal and interest
with respect to all other Loans outstanding as Base Rate Advances and
Overnight Rate Advances, and all other Obligations hereunder (other
than Loans), at a rate equal to the applicable Base Rate plus an
additional two percent (2.0%) per annum;
(d) Interest on each Loan shall accrue from and including
the date of such Loan to but excluding the date of any repayment thereof;
provided that, if a Loan is repaid on the same day made, one day's interest
shall be paid on such Loan. Interest on all Base Rate Advances and Overnight
Rate Advances shall be payable quarterly in arrears on the last calendar day of
each calendar quarter of Intermet in each year. Interest on all outstanding
Eurodollar Advances and Bid Rate Advances shall be payable on the last day of
each Interest Period applicable thereto, and, in the case of Interest Periods in
excess of three months (in the
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case of Eurodollar Advances and Bid Rate Advances), on each day which occurs
every 3 months, as the case may be, after the initial date of such Interest
Period. Interest on all Loans shall be payable on any conversion of any Advances
comprising such Loans into Advances of another Type, prepayment (on the amount
prepaid), at maturity (whether by acceleration, notice of prepayment or
otherwise) and, after maturity, on demand; and
(e) The Agent, upon determining the Adjusted LIBO Rate for
any Interest Period, shall promptly notify by telephone (confirmed in writing)
or in writing Intermet and the other Lenders. Any such determination shall,
absent manifest error, be final, conclusive and binding for all purposes.
SECTION 3.04. INTEREST PERIODS.
(a) In connection with the making or continuation of, or
conversion into, each Borrowing of Eurodollar Advances, Intermet shall select an
Interest Period to be applicable to such Eurodollar Advances, which Interest
Period shall be either a 1, 2, 3 or 6 month period.
(b) In connection with the making of each Bid Rate Loan,
Intermet shall request an Interest Period to be applicable thereto, which
Interest Period shall be for a minimum of seven (7) days and a maximum of ninety
(90) days, which request may be accepted or rejected by the Lenders as provided
in Section 2.08 hereof.
(c) Notwithstanding paragraphs (a) or (b) above:
(i) The initial Interest Period for any Borrowing
of Eurodollar Advances shall commence on the date of such Borrowing
(including the date of any conversion from a Borrowing consisting of
Advances of another Type) and each Interest Period occurring thereafter
in respect of such Borrowing shall commence on the day on which the
next preceding Interest Period expires;
(ii) If any Interest Period would otherwise expire
on a day which is not a Business Day, such Interest Period shall expire
on the next succeeding Business Day, provided that if any Interest
Period in respect of Eurodollar Advances would otherwise expire on a
day that is not a Business Day but is a day of the month after which no
further Business Day occurs in such month, such Interest Period shall
expire on the next preceding Business Day;
(iii) Any Interest Period in respect of Eurodollar
Advances which begins on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period shall, subject to part (iv) below, expire on the last Business
Day of such calendar month; and
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(iv) No Interest Period with respect to the Loans
shall extend beyond the Maturity Date.
SECTION 3.05. FEES.
(a) Intermet shall pay to the Agent, for the account of and
distribution of the respective Pro Rata Share to each Lender (subject to the
last sentence hereof), a commitment fee (the "Commitment Fee") for the period
commencing on the Closing Date to and including the Maturity Date, computed at a
rate equal to the Applicable Commitment Percentage per annum multiplied by the
average daily unused portion of the Commitments of the Lenders, such fee being
payable quarterly in arrears on the date which is five days following the last
day of each fiscal quarter of Intermet and on the Maturity Date. For purposes of
calculating the Commitment Fee, Bid Rate Loans shall be considered a usage of
the Commitments only with respect to the Lenders participating therein and only
to the extent of such Lenders' actual participation therein. Outstanding Letter
of Credit Obligations shall be considered usage of the Commitments.
(b) Intermet agrees to pay to the Agent, for the account of
the Lenders, a letter of credit fee equal to the Applicable Margin applicable to
Eurodollar Advances multiplied by the daily average amount of Letter of Credit
Obligations (the "Letter of Credit Fee"). The Letter of Credit Fee shall be
payable by Intermet quarterly, in arrears, on the date which is five days
following the last day of each fiscal quarter of Intermet, and on the Maturity
Date.
(c) Intermet shall pay to the Agent such fees for its
administrative services in the respective amounts and on the dates as previously
agreed in writing by Intermet with the Agent.
SECTION 3.06. VOLUNTARY PREPAYMENTS OF BORROWINGS.
(a) Intermet may, at its option, prepay Borrowings
consisting of Base Rate Advances, Bid Rate Advances and Overnight Rate Advances
at any time in whole, or from time to time in part, in amounts aggregating
$100,000 or any greater integral multiple of $100,000, by paying the principal
amount to be prepaid together with interest accrued and unpaid thereon to the
date of prepayment, together with, in the case of Bid Rate Advances, all
compensation payments pursuant to Section 3.12 if such prepayment is made on a
date other than the last day of the Interest Period applicable thereto. Those
Borrowings consisting of Eurodollar Advances may be prepaid, at Intermet's
option, in whole, or from time to time in part, in amounts aggregating
$1,000,000 or any greater integral multiple of $100,000, by paying the principal
amount to be prepaid, together with interest accrued and unpaid thereon to the
date of prepayment, and all compensation payments pursuant to Section 3.12 if
such prepayment is made on a date other than the last day of an Interest Period
applicable thereto. Each such optional prepayment shall be applied in accordance
with Section 3.06(c) below.
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(b) Intermet shall give written notice (or telephonic notice
confirmed in writing) to the Agent of any intended prepayment of the Loans (i)
prior to 12:00 Noon (local time for the Agent), on the date of any prepayment of
Base Rate Advances, Overnight Rate Advances and Bid Rate Advances and (ii) not
less than three Business Days prior to any prepayment of Eurodollar Advances.
Such notice, once given, shall be irrevocable. Upon receipt of such notice of
prepayment, the Agent shall promptly notify each Lender of the contents of such
notice and of such Lender's share of such prepayment (provided that notices of
prepayments of Bid Rate Loans shall only be given to the Lenders participating
therein).
(c) Intermet, when providing notice of prepayment pursuant
to Section 3.06(b), may designate the Types of Advances and the specific
Borrowing or Borrowings which are to be prepaid provided that each prepayment
made pursuant to a single Borrowing shall be applied pro rata among the Advances
comprising such Borrowing. In the absence of a designation by Intermet, the
Agent shall, subject to the foregoing, make such designation in its sole
discretion. All voluntary prepayments shall be applied to the payment of
interest on the Borrowings prepaid before application to principal.
SECTION 3.07. PAYMENTS, ETC.
(a) Except as otherwise specifically provided herein, all
payments under this Agreement and the other Credit Documents, other than the
payments specified in clause (ii) below, shall be made without defense, set-off
or counterclaim to the Agent not later than 1:00 PM (local time for the Agent)
on the date when due and shall be made in Dollars in immediately available funds
at its Payment Office.
(b) (i) All such payments shall be made free and clear of
and without deduction or withholding for any Taxes in respect of this Agreement,
the Notes or other Credit Documents, or any payments of principal, interest,
fees or other amounts payable hereunder or thereunder (but excluding, except as
provided in paragraph (iii) hereof, any Taxes imposed on the overall net income
of the Lenders pursuant to the laws of the jurisdiction in which the principal
executive office or appropriate Lending Office of such Lender is located). If
any Taxes are so levied or imposed, Intermet agrees (A) to pay the full amount
of such Taxes, and such additional amounts as may be necessary so that every net
payment of all amounts due hereunder and under the Notes and other Credit
Documents, after withholding or deduction for or on account of any such Taxes
(including additional sums payable under this Section 3.07), will not be less
than the full amount provided for herein had no such deduction or withholding
been required, (B) to make such withholding or deduction and (C) to pay the full
amount deducted to the relevant authority in accordance with applicable law.
Intermet will furnish to the Agent and each Lender, within 30 days after the
date the payment of any Taxes is due pursuant to applicable law, certified
copies of tax receipts evidencing such payment by Intermet. Intermet will
indemnify and hold harmless the Agent and each Lender and reimburse the Agent
and each Lender upon written request for the amount of any Taxes so levied or
imposed and paid by the Agent or Lender and any liability (including penalties,
interest and expenses) arising therefrom
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or with respect thereto, whether or not such Taxes were correctly or illegally
asserted. A certificate as to the amount of such payment by such Lender or the
Agent, absent manifest error, shall be final, conclusive and binding for all
purposes.
(ii) Each Lender that is organized under the laws
of any jurisdiction other than the United States of America or any State thereof
(including the District of Columbia) agrees to furnish to Intermet and the
Agent, prior to the time it becomes a Lender hereunder, two copies of either
U.S. Internal Revenue Service Form 4224 or U.S. Internal Revenue Service Form
1001 or any successor forms thereto (wherein such Lender claims entitlement to
complete exemption from or reduced rate of U.S. Federal withholding tax on
interest paid by Intermet hereunder) and to provide to Intermet and the Agent a
new Form 4224 or Form 1001 or any successor forms thereto if any previously
delivered form is found to be incomplete or incorrect in any material respect or
upon the obsolescence of any previously delivered form; provided, however, that
no Lender shall be required to furnish a form under this paragraph (ii) if it is
not entitled to claim an exemption from or a reduced rate of withholding under
applicable law. A Lender that is not entitled to claim an exemption from or a
reduced rate of withholding under applicable law, promptly upon written request
of Intermet, shall so inform Intermet in writing.
(iii) Intermet shall also reimburse the Agent and
each Lender, upon written request, for any Taxes imposed (including, without
limitation, Taxes imposed on the overall net income of the Agent or Lender or
its applicable Lending Office pursuant to the laws of the jurisdiction in which
the principal executive office or the applicable Lending Office of the Agent or
Lender is located) as the Agent or Lender shall determine are payable by the
Agent or Lender in respect of amounts paid by or on behalf of Intermet to or on
behalf of the Agent or Lender pursuant to paragraph (i) hereof.
(c) Subject to Section 3.04(ii), whenever any payment to be
made hereunder or under any Note shall be stated to be due on a day which is not
a Business Day, the due date thereof shall be extended to the next succeeding
Business Day and, with respect to payments of principal, interest thereon shall
be payable at the applicable rate during such extension.
(d) All computations of interest and fees shall be made on
the basis of a year of 360 days for the actual number of days (including the
first day but excluding the last day) occurring in the period for which such
interest or fees are payable (to the extent computed on the basis of days
elapsed), except that interest on Base Rate Advances shall be computed on the
basis of a year of 365/366 days for the actual number of days. Interest on Base
Rate Advances shall be calculated based on the Base Rate from and including the
date of such Loan to but excluding the date of the repayment or conversion
thereof. Interest on Eurodollar Advances and Bid Rate Advances shall be
calculated as to each Interest Period from and including the first day thereof
to but excluding the last day thereof. Each determination by the Agent of an
interest rate
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or fee hereunder shall be made in good faith and, except for manifest error,
shall be final, con clusive and binding for all purposes.
(e) Payment by Intermet to the Agent in accordance with the
terms of this Agreement shall, as to Intermet, constitute payment to the Lenders
under this Agreement.
SECTION 3.08. INTEREST RATE NOT ASCERTAINABLE, ETC. In the
event that the Agent shall have determined (which determination shall be made in
good faith and, absent mani fest error, shall be final, conclusive and binding
upon all parties) that on any date for determining the Adjusted LIBO Rate for
any Interest Period, by reason of any changes arising after the date of this
Agreement affecting the London interbank market, or the Agent's position in such
market, adequate and fair means do not exist for ascertaining the applicable
interest rate on the basis provided for in the definition of Adjusted LIBO Rate
then, and in any such event, the Agent shall forthwith give notice (by telephone
confirmed in writing) to Intermet and to the Lenders, of such determination and
a summary of the basis for such determination. Until the Agent notifies Intermet
that the circumstances giving rise to the suspension described herein no longer
exist, the obligations of the Lenders to make or permit portions of the Loans to
remain outstanding past the last day of the then current Interest Periods as
Eurodollar Advances shall be suspended, and such affected Advances shall bear
interest at the Base Rate (or at such other rate of interest per annum as
Intermet and each of the Agent and the Lenders shall have agreed to in writing).
SECTION 3.09. ILLEGALITY.
(a) In the event that any Lender shall have determined
(which determination shall be made in good faith and, absent manifest error,
shall be final, conclusive and binding upon all parties) at any time that the
making or continuance of any Eurodollar Advance has become unlawful by
compliance by such Lender in good faith with any applicable law, governmental
rule, regulation, guideline or order (whether or not having the force of law and
whether or not failure to comply therewith would be unlawful), then, in any such
event, the Lender shall give prompt notice (by telephone confirmed in writing)
to Intermet and to the Agent of such determination and a summary of the basis
for such determination (which notice the Agent shall promptly transmit to the
other Lenders).
(b) Upon the giving of the notice to Intermet referred to in
subsection (a) above, (i) Intermet's right to request and such Lender's
obligation to make Eurodollar Advances shall be immediately suspended, and such
Lender shall make an Advance as part of the requested Borrowing of Eurodollar
Advances, bearing interest at the Base Rate (or at such other rate of interest
per annum as Intermet and each of the Agent and the Lenders shall have agreed to
in writing), which Base Rate Advance shall, for all other purposes, be
considered part of such Borrowing, and (ii) if the affected Eurodollar Advance
or Advances are then outstanding, Intermet shall immediately, or if permitted by
applicable law, no later than the date permitted thereby, upon at least one
Business Day's written notice to the Agent and the affected Lender, convert each
such Advance into an Advance or Advances of a different Type with an Interest
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Period ending on the date on which the Interest Period applicable to the
affected Eurodollar Advances expires, provided that if more than one Lender is
affected at any time, then all affected Lenders must be treated the same
pursuant to this Section 3.09(b).
(c) Notwithstanding any other provision contained in this
Agreement, the Agent shall not be obligated to issue any Letter of Credit, nor
shall any Lender be obligated to purchase its participation in any Letter of
Credit to be issued hereunder, if the issuance of such Letter of Credit or
purchase of such participation shall have become unlawful or prohibited by
compliance by Agent or such Lender in good faith with any law, governmental
rule, guideline, request, order, injunction, judgment or decree (whether or not
having the force of law); provided that in the case of the obligation of a
Lender to purchase such participation, such Lender shall have notified the Agent
to such effect at least three (3) Business Days' prior to the issuance thereof
by the Agent, which notice shall relieve the Agent of its obligation to issue
such Letter of Credit pursuant to Section 2.04 and Section 2.05 hereof.
SECTION 3.10. INCREASED COSTS.
(a) (i) If, by reason of (x) after the date hereof, the
introduction of or any change (including, without limitation, any change by way
of imposition or increase of reserve requirements) in or in the interpretation
of any law or regulation, or (y) the compliance with any guideline or request
from any central bank or other governmental authority or quasi-governmental
authority exercising control over banks or financial institutions generally
(whether or not having the force of law):
(1) any Lender (or its applicable Lending Office)
shall be subject to any tax, duty or other charge with respect to its
Eurodollar Advances, Letter of Credit Obligations or its obligation to
make Eurodollar Advances or to issue Letters of Credit, or the basis of
taxation of payments to any Lender of the principal of or interest on
its Eurodollar Advances or its obligation to make Eurodollar Advances
or to issue Letters of Credit shall have changed (except for changes in
the tax on the overall net income of such Lender or its applicable
Lending Office imposed by the jurisdiction in which such Lender's
principal executive office or applicable Lending Office is located); or
(2) any reserve (including, without limitation,
any imposed by the Board of Governors of the Federal Reserve System),
special deposit or similar requirement against assets of, deposits with
or for the account of, or credit extended by, any Lender's applicable
Lending Office shall be imposed or deemed applicable or any other
condition affecting its Eurodollar Advances, Letter of Credit
Obligations or its obligation to make Eurodollar Advances shall be
imposed on any Lender or its applicable Lending Office or the London
interbank market;
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and as a result thereof there shall be any increase in the cost to such Lender
of agreeing to make or making, funding or maintaining Eurodollar Advances or
Letters of Credit (except to the extent already included in the determination of
the applicable Adjusted LIBO Rate), or there shall be a reduction in the amount
received or receivable by such Lender or its applicable Lending Office, then
Intermet shall from time to time (subject, in the case of certain Taxes, to the
applicable provisions of Section 3.07(b)), or
(ii) in the event that any Lender shall have determined that any law,
treaty, governmental (or quasi-governmental) rule, regulation, guideline or
order regarding capital adequacy not currently in effect or fully applicable as
of the Closing Date, or any change therein or in the interpretation or
application thereof after the Closing Date, or compliance by such Lender with
any request or directive regarding capital adequacy not currently in effect or
fully applicable as of the Closing Date (whether or not having the force of law
and whether or not failure to comply therewith would be unlawful) from a central
bank or governmental authority or body having jurisdiction, does or shall have
the effect of reducing the rate of return on such Lender's capital as a
consequence of its obligations hereunder to a level below that which such Lender
could have achieved but for such law, treaty, rule, regulation, guideline or
order, or such change or compliance (taking into consideration such Lender's
policies with respect to capital adequacy) by an amount deemed by such Lender to
be material;
then, in the case of (i) or (ii) above, upon written notice from and demand by
such Lender on Intermet (with a copy of such notice and demand to the Agent),
Intermet shall pay to the Agent for the account of such Lender within five
Business Days after the date of such notice and demand, additional amounts
sufficient to indemnify such Lender against such increased cost or reduced
yield. A certificate as to the amount of such increased cost or reduced yield
submitted to Intermet and the Agent by such Lender in good faith and accompanied
by a statement prepared by such Lender describing in reasonable detail the basis
for and calculation of such increased cost, shall, except for manifest error, be
final, conclusive and binding for all purposes.
(b) If any Lender shall advise the Agent that at any time,
because of the circumstances described in clauses (x) or (y) in Section 3.10(a)
or any other circumstances beyond such Lender's reasonable control arising after
the date of this Agreement affecting such Lender or the London interbank market
or such Lender's position in such markets, the Adjusted LIBO Rate as determined
by the Agent, will not adequately and fairly reflect the cost to such Lender of
funding its Eurodollar Advances, then, and in any such event:
(i) the Agent shall forthwith give notice (by
telephone confirmed in writing) to Intermet and to the other Lenders of
such advice;
(ii) Intermet's right to request and such Lender's
obligation to make or permit portions of the Loans to remain
outstanding past the last day of the then current Interest Periods as
Eurodollar Advances shall be immediately suspended; and
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(iii) such Lender shall make an Advance as part of
the requested Borrowing of Eurodollar Advances, as the case may be,
bearing interest at the Base Rate (or at such other rate of interest
per annum as Intermet and each of the Agent and the Lenders shall have
agreed to in writing), which Base Rate Advance shall, for all other
purposes, be considered part of such Borrowing.
SECTION 3.11. LENDING OFFICES.
(a) Each Lender agrees that, if requested by Intermet, it
will use reasonable efforts (subject to overall policy considerations of such
Lender) to designate an alternate Lending Office with respect to any of its
Eurodollar Advances affected by the matters or circumstances described in
Sections 3.07(b), 3.08, 3.09 or 3.10 to reduce the liability of Intermet or
avoid the results provided thereunder, so long as such designation is not
disadvantageous to such Lender as determined by such Lender, which determination
if made in good faith, shall be conclusive and binding on all parties hereto.
Nothing in this Section 3.11 shall affect or postpone any of the obligations of
Intermet or any right of any Lender provided hereunder.
(b) If any Lender that is organized under the laws of any
jurisdiction other than the United States of America or any State thereof
(including the District of Columbia) issues a public announcement with respect
to the closing of its lending offices in the United States such that any
withholdings or deductions and additional payments with respect to Taxes may be
required to be made by Intermet thereafter pursuant to Section 3.07(b), such
Lender shall use reasonable efforts to furnish Intermet notice thereof as soon
as practicable thereafter; provided, however, that no delay or failure to
furnish such notice shall in any event release or discharge Intermet from its
obligations to such Lender pursuant to Section 3.07(b) or otherwise result in
any liability of such Lender.
SECTION 3.12. FUNDING LOSSES. Intermet shall compensate each
Lender, upon its written request to Intermet (which request shall set forth the
basis for requesting such amounts in reasonable detail and which request shall
be made in good faith and, absent manifest error, shall be final, conclusive and
binding upon all of the parties hereto), for all losses, expenses and
liabilities (including, without limitation, any interest paid by such Lender to
lenders of funds borrowed by it to make or carry its Eurodollar Advances or Bid
Rate Advances, in either case to the extent not recovered by such Lender in
connection with the re-employment of such funds and including loss of
anticipated profits), which the Lender may sustain: (i) if for any reason (other
than a default by such Lender) a borrowing of, or conversion to or continuation
of, Eurodollar Advances or Bid Rate Advances to Intermet does not occur on the
date specified therefor in a Notice of Borrowing, Bid Request or Notice of
Conversion/Continuation, (whether or not withdrawn), (ii) if any repayment
(including mandatory prepayments and any conversions pursuant to Section
3.09(b)) of any Eurodollar Advances or Bid Rate Advances by Intermet occurs on a
date which is not the last day of an Interest Period applicable thereto, or
(iii) if, for
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any reason, Intermet defaults in its obligation to repay its Eurodollar Advances
when required by the terms of this Agreement.
SECTION 3.13. ASSUMPTIONS CONCERNING FUNDING OF EURODOLLAR
ADVANCES. Calculation of all amounts payable to a Lender under this Article III
shall be made as though that Lender had actually funded its relevant Eurodollar
Advances through the purchase of deposits in the relevant market bearing
interest at the rate applicable to such Eurodollar Advances in an amount equal
to the amount of the Eurodollar Advances and having a maturity comparable to the
relevant Interest Period and through the transfer of such Eurodollar Advances
from an offshore office of that Lender to a domestic office of that Lender in
the United States of America; provided however, that each Lender may fund each
of its Eurodollar Advances in any manner it sees fit and the foregoing
assumption shall be used only for calculation of amounts payable under this
Article III.
SECTION 3.14. APPORTIONMENT OF PAYMENTS. Aggregate principal
and interest payments in respect of Loans and payments in respect of Letter of
Credit Fees and Commitment Fees shall be apportioned among all outstanding
Commitments, Letter of Credit Obligations and Loans to which such payments
relate, proportionately to the Lenders' respective pro rata portions of such
Commitments and outstanding Loans and Letter of Credit Obligations. The Agent
shall promptly distribute to each Lender at its Payment Office set forth beside
its name on the appropriate signature page hereof or such other address as any
Lender may request its share of all such payments received by the Agent.
SECTION 3.15. SHARING OF PAYMENTS, ETC. If any Lender shall
obtain any payment or reduction (including, without limitation, any amounts
received as adequate protection of a deposit treated as cash collateral under
the Bankruptcy Code) of the Obligations (whether voluntary, involuntary, through
the exercise of any right of set-off, or otherwise) in excess of its pro rata
portion of payments or reductions on account of such obligations obtained by all
the Lenders (other than, prior to the termination of the Commitments, payments
of principal, interest and fees with respect to the Bid Rate Loans which are
payable solely to the Lenders participating therein), such Lender shall
forthwith (i) notify each of the other Lenders and Agent of such receipt, and
(ii) purchase from the other Lenders such participations in the affected
obligations as shall be necessary to cause such purchasing Lender to share the
excess payment or reduction, net of costs incurred in connection therewith,
ratably with each of them, provided that if all or any portion of such excess
payment or reduction is thereafter recovered from such purchasing Lender or
additional costs are incurred, the purchase shall be rescinded and the purchase
price restored to the extent of such recovery or such additional costs, but
without interest unless the Lender obligated to return such funds is required to
pay interest on such funds. Intermet agrees that any Lender so purchasing a
participation from another Lender pursuant to this Section 3.15 may, to the
fullest extent permitted by law, exercise all its rights of payment (including
the right of set-off) with respect to such participation as fully as if such
Lender were the direct creditor of Intermet in the amount of such participation.
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SECTION 3.16. BENEFITS TO GUARANTORS. In consideration of
the execution and delivery by the Guarantors of the Guaranty Agreement, Intermet
agrees, subject to the terms hereof, to make extensions of credit hereunder
available to the Guarantors.
SECTION 3.17. LIMITATION ON CERTAIN PAYMENT OBLIGATIONS.
(a) Each Lender or Agent shall make written demand on
Intermet for indemnification or compensation pursuant to Section 3.07 no later
than 90 days after the earlier of (i) the date on which such Lender or Agent
makes payment of such Taxes, and (ii) the date on which the relevant taxing
authority or other governmental authority makes written demand upon such Lender
or Agent for payment of such Taxes.
(b) Each Lender or Agent shall make written demand on
Intermet for indemnification or compensation pursuant to Sections 3.12 and 3.13
no later than 90 days after the event giving rise to the claim for
indemnification or compensation occurs.
(c) Each Lender or Agent shall make written demand on
Intermet for indemnification or compensation pursuant to Sections 3.09 no later
than 90 days after such Lender or Agent receives actual notice or obtains actual
knowledge of the promulgation of a law, rule, order or interpretation or
occurrence of another event giving rise to a claim pursuant to such sections.
(d) In the event that the Lenders or Agent fail to give
Intermet notice within the time limitations prescribed in (a) or (b) above,
Intermet shall not have any obligation to pay such claim for compensation or
indemnification. In the event that any Lender or Agent fails to give Intermet
notice within the time limitation prescribed in (c) above, Intermet shall not
have any obligation to pay any amount with respect to claims accruing prior to
the ninetieth day preceding such written demand.
SECTION 3.18. LETTER OF CREDIT OBLIGATIONS ABSOLUTE. The
obligation of Intermet to reimburse the Agent for drawings made under Letters of
Credit issued for the account of Intermet and the Lenders' obligation to honor
their participations purchased therein shall be unconditional and irrevocable
and shall be paid strictly in accordance with the terms of this Agreement under
all circumstances, including without limitation, the following circumstances:
(a) Any lack of validity or enforceability of any Letter of
Credit;
(b) The existence of any claim, set-off, defense or other
right which Intermet or any Subsidiary or Affiliate of Intermet may have at any
time against a beneficiary or any transferee of any Letter of Credit (or any
Persons or entities for whom any such beneficiary or transferee may be acting),
any Lender or any other Person, whether in connection with this
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Agreement, the transactions contemplated herein or any unrelated transaction
(including without limitation any underlying transaction between Intermet or any
of its Subsidiaries and Affiliates and the beneficiary for which such Letter of
Credit was procured); provided that nothing in this Section shall affect the
right of Intermet to seek relief against any beneficiary, transferee, Lender or
any other Person in any action or proceeding or to bring a counterclaim in any
suit involving such Persons;
(c) Any draft, demand, certificate or any other document
presented under any Letter of Credit proving to be forged, fraudulent or invalid
in any respect or any statement therein being untrue or inaccurate in any
respect;
(d) Payment by the Agent under any Letter of Credit against
presentation of a demand, draft or certificate or other document which does not
comply with the terms of such Letter of Credit;
(e) Any other circumstance or happening whatsoever which is
similar to any of the foregoing; or
(f) the fact that a Default or an Event of Default shall
have occurred and be continuing.
Nothing in this Section 3.18 shall prevent an action against the Agent for its
gross negligence or willful misconduct in honoring drafts under the Letters of
Credit.
SECTION 3.19. FAILURE TO MAINTAIN MINIMUM REQUIRED RATING.
If any Lender has either (a) had its long-term deposit rating reduced below the
Minimum Required Rating by either Rating Agency, or (b) in the case of a Lender
that is a party to this Agreement on the Closing Date and has, on such date, a
long-term deposit rating from the Rating Agencies below the applicable Minimum
Required Rating, such Lender has received from either Rating Agency a reduction
in its long-term deposit rating from the rating in effect on the Closing Date,
such Lender, will, upon the request of the Agent, assign its Commitment and all
of its right, title and interest in and to any Letters of Credit or Loans
outstanding thereunder, to an Eligible Assignee designated by the Agent and
acceptable to Intermet in accordance with the terms of this Agreement.
ARTICLE IV.
CONDITIONS TO BORROWINGS
The obligations of each Lender to make Advances to Intermet
and the obligation of the Agent to issue Letters of Credit for the account of
Intermet hereunder is subject to the satisfaction of the following conditions:
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SECTION 4.01. CONDITIONS PRECEDENT TO INITIAL LOANS AND
LETTERS OF CREDIT. On the Closing Date, all obligations of Intermet hereunder
incurred prior to such date (including, without limitation, Intermet's
obligations to reimburse the reasonable fees and expenses of counsel to the
Agent and any fees and expenses payable to the Agent, the Co-Agents, the Lenders
and their Affiliates as previously agreed with Intermet), shall have been paid
in full, and the Agent shall have received the following, in form and substance
reasonably satisfactory in all respects to the Agent:
(a) the duly executed counterparts of this Agreement;
(b) the duly executed Revolving Credit Notes evidencing the
Commitments and the duly executed Bid Facility Notes;
(c) the duly executed Guaranty Agreement;
(d) certificate of Intermet in substantially the form of
Exhibit I attached hereto and appropriately completed;
(e) certificates of the Secretary or Assistant Secretary of
each of the Credit Parties (or, in the case of any Foreign Subsidiary, a
comparable company officer) attaching and certifying copies of the resolutions
of the boards of directors (or, in the case of any Foreign Subsidiary, the
comparable governing body of such entity) of the Credit Parties, authorizing as
applicable (i) the execution, delivery and performance of the Credit Documents,
and (ii) the granting of the pledges and security interests granted pursuant to
the Pledge Agreements;
(f) certificates of the Secretary or an Assistant Secretary
of each of the Credit Parties (or, in the case of any Foreign Subsidiary, a
comparable company officer) certifying (i) the name, title and true signature of
each officer of such entities executing the Credit Documents, and (ii) the
bylaws or comparable governing documents of such entities;
(g) certified copies of the certificate or articles of
incorporation of each Credit Party (or comparable organizational document of
each Foreign Subsidiary) certified by the Secretary of State or the Secretary or
Assistant Secretary of such Credit Party, together with certificates of good
standing or existence, as may be available from the Secretary of State (or
comparable office or registry for each Foreign Subsidiary) of the jurisdiction
of incorporation or organization of such Credit Party;
(h) copies of all documents and instruments, including all
consents, authorizations and filings, required or advisable under any
Requirement of Law or by any material Contractual Obligation of the Credit
Parties, in connection with the execution, delivery, performance, validity and
enforceability of the Credit Documents and the other documents to be
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executed and delivered hereunder, and such consents, authorizations, filings and
orders shall be in full force and effect and all applicable waiting periods
shall have expired;
(i) an internally prepared draft of Intermet's consolidated
financial statements for the fiscal period ending June 30, 1996, certified by
the chief financial officer of Intermet;
(j) notice to, and acknowledgment by, the exiting lenders
pursuant to the Prior Credit Agreement to accept payment in full of all
obligations outstanding under the Prior Credit Agreement;
(k) certificates, reports and other information as the Agent
may reasonably request from any Consolidated Company in order to satisfy the
Lenders as to the absence of any material liabilities or obligations arising
from matters relating to employees of the Consolidated Companies, including
employee relations, collective bargaining agreements, Plans, Foreign Plans, and
other compensation and employee benefit plans;
(l) certificates, reports, environmental audits and
investigations, and other information as the Agent may reasonably request from
any Consolidated Company in order to satisfy the Lenders as to the absence of
any material liabilities or obligations arising from environmental and employee
health and safety exposures to which the Consolidated Companies may be subject,
and the plans of the Consolidated Companies with respect thereto;
(m) certificates, reports and other information as the Agent
may reasonably request from any Consolidated Company in order to satisfy the
Lenders as to the absence of any material liabilities or obligations arising
from litigation (including without limitation, products liability and patent
infringement claims) pending or threatened against the Consolidated Companies;
(n) a summary, set forth in format and detail reasonably
acceptable to the Agent, of the types and amounts of insurance (property and
liability) maintained by the Consolidated Companies;
(o) the favorable opinion of Dickinson, Wright, Moon, Van
Dusen & Xxxxxxx, counsel to the Credit Parties, substantially in the form of
Exhibit J-1 addressed to the Agent, the Co-Agents and each of the Lenders and
the favorable opinion of Xxxxxxxxxx & Cody, special Georgia counsel to the
Credit Parties, substantially in the form of Exhibit J-2 addressed to the Agent,
the Co-Agents and each of the Lenders;
(p) consent from Prudential to the execution and delivery of
this Agreement in form and substance satisfactory to the Agent and the Required
Lenders; and
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(q) all corporate proceedings and all other legal matters in
connection with the authorization, legality, validity and enforceability of the
Credit Documents shall be reason ably satisfactory in form and substance to the
Required Lenders.
SECTION 4.02. CONDITIONS TO ALL LOANS AND LETTERS OF CREDIT.
At the time of the making of all Loans and the issuance of any Letter of Credit
(before as well as after giving effect to such Loans or Letters of Credit and to
the proposed use of the proceeds thereof), the following conditions shall have
been satisfied or shall exist:
(a) there shall exist no Default or Event of Default;
(b) all representations and warranties by Intermet contained
herein shall be true and correct in all material respects with the same effect
as though such representations and warranties had been made on and as of the
date of such Loans;
(c) since the date of the most recent financial statements
of the Consolidated Companies described in Section 5.14, there shall have been
no change which has had or could reasonably be expected to have a Materially
Adverse Effect (whether or not any notice with respect to such change has been
furnished to the Lenders pursuant to Section 6.07);
(d) there shall be no action or proceeding instituted or
pending before any court or other governmental authority or, to the knowledge of
Intermet, threatened (i) which reasonably could be expected to have a Materially
Adverse Effect, or (ii) seeking to prohibit or restrict one or more Credit
Party's ownership or operation of any portion of its business or assets, or to
compel one or more Credit Party to dispose of or hold separate all or any
portion of its businesses or assets, where such portion or portions of such
business(es) or assets, as the case may be, constitute a material portion of the
total businesses or assets of the Consolidated Companies; and
(e) the Loans to be made and the use of proceeds thereof or
the Letters of Credit to be issued, as the case may be, shall not contravene,
violate or conflict with, or involve the Agent or any Lender in a violation of,
any law, rule, injunction, or regulation, or determination of any court of law
or other governmental authority applicable to Intermet.
Each request for a Borrowing and the acceptance by Intermet
of the proceeds thereof and each request for the issuance of a Letter of Credit
shall constitute a representation and warranty by Intermet, as of the date of
the Loans comprising such Borrowing or the date of the issuance of such Letter
of Credit, that the applicable conditions specified in Sections 4.01 and 4.02
have been satisfied or waived in writing.
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ARTICLE V.
REPRESENTATIONS AND WARRANTIES
Intermet (as to itself and all other Consolidated Companies)
represents and warrants as follows:
SECTION 5.01. CORPORATE EXISTENCE; COMPLIANCE WITH LAW.
Except as set forth on Schedule 5.01(a), each of the Consolidated Companies
(other than the German Subsidiaries set forth in the next sentence) is a
corporation duly organized, validly existing, and in good standing under the
laws of the jurisdiction of its incorporation. Each of Columbus Neunkirchen,
Intermet Machining GmbH and Intermet Holding Deutschland GmbH is a German
company with limited liability duly organized, validly existing and in good
standing under the laws of Germany. Each of the Consolidated Companies (i) has
the corporate power and authority and the legal right to own and operate its
property and to conduct its business, (ii) is duly qualified as a foreign
corporation and in good standing under the laws of each jurisdiction where its
ownership of property or the conduct of its business requires such
qualification, and (iii) is in compliance with all Requirements of Law, except
where the failure to duly qualify or to comply with applicable Requirements of
Law would not have a Materially Adverse Effect. The jurisdiction of
incorporation or organization, and the ownership of all issued and outstanding
capital stock, for each Subsidiary as of the date of this Agreement is
accurately described on Schedule 5.01.
SECTION 5.02. CORPORATE POWER; AUTHORIZATION. Each of the
Credit Parties has the corporate power and authority to make, deliver and
perform the Credit Documents to which it is a party and has taken all necessary
corporate action to authorize the execution, delivery and performance of such
Credit Documents. No consent or authorization of, or filing with, any Person
(including, without limitation, any governmental authority), is required in
connection with the execution, delivery or performance by any Credit Party, or
the validity or enforceability against any Credit Party, of the Credit
Documents, other than such consents, authorizations or filings which have been
made or obtained (other than routine filings with the Securities and Exchange
Commission).
SECTION 5.03. ENFORCEABLE OBLIGATIONS. This Agreement has
been duly executed and delivered, and each other Credit Document will be duly
executed and delivered, by the respective Credit Parties, and this Agreement
constitutes, and each other Credit Document when executed and delivered will
constitute, legal, valid and binding obligations of the Credit Parties,
respectively, enforceable against the Credit Parties in accordance with their
respective terms, except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, or similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity.
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SECTION 5.04. NO LEGAL BAR. The execution, delivery and
performance by the Credit Parties of the Credit Documents will not violate any
Requirement of Law or cause a breach or default under any of their respective
Contractual Obligations.
SECTION 5.05. NO MATERIAL LITIGATION OR INVESTIGATIONS.
Except as set forth on Schedule 5.05 or in any notice furnished to the Lenders
pursuant to Section 6.07(g) at or prior to the respective times the
representations and warranties set forth in this Section 5.05 are made or deemed
to be made hereunder, no litigation, investigations or proceedings of or before
any courts, tribunals, arbitrators or governmental authorities are pending or,
to the knowledge of Intermet, threatened by or against any of the Consolidated
Companies, or against any of their respective properties or revenues, existing
or future (a) with respect to any Credit Document, or any of the transactions
contemplated hereby or thereby, or (b) which, if adversely determined, would
reasonably be expected to have a Materially Adverse Effect.
SECTION 5.06. INVESTMENT COMPANY ACT, ETC. None of the
Consolidated Companies is an "investment company" or a company "controlled" by
an "investment company" (as each of the quoted terms is defined or used in the
Investment Company Act of 1940, as amended). None of the Consolidated Companies
is subject to regulation under the Public Utility Holding Company Act of 1935,
the Federal Power Act, or any foreign, federal or local statute or regulation
limiting its ability to incur indebtedness for money borrowed, guarantee such
indebtedness, or pledge its assets to secure such indebtedness, as contemplated
hereby or by any other Credit Document.
SECTION 5.07. MARGIN REGULATIONS. No part of the proceeds of
any of the Loans will be used for any purpose which violates, or which would be
inconsistent or not in compliance with, the provisions of the applicable Margin
Regulations.
SECTION 5.08. COMPLIANCE WITH ENVIRONMENTAL LAWS.
(a) Except as set forth on Schedule 5.08 attached hereto,
the Consolidated Companies have received no notices of claims or potential
liability under, and are in compliance with, all applicable Environmental Laws,
where such claims and liabilities under, and failures to comply with, such
statutes, regulations, rules, ordinances, laws or licenses, would reasonably be
expected to result in penalties, fines, claims or other liabilities to the
Consolidated Companies in amounts in excess of five percent (5%) of Consolidated
Net Worth, either individually or in the aggregate.
(b) Except as set forth on Schedule 5.08 attached hereto,
none of the Consolidated Companies has received any notice of violation, or
notice of any action, either judicial or administrative, from any governmental
authority (whether United States or foreign) relating to the actual or alleged
violation of any Environmental Law, including, without
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limitation, any notice of any actual or alleged spill, leak, or other release of
any Hazardous Substance, waste or hazardous waste by any Consolidated Company or
its employees or agents, or as to the existence of any contamination on any
properties owned by any Consolidated Company, where any such violation, spill,
leak, release or contamination would reasonably be expected to result in
penalties, fines, claims or other liabilities to the Consolidated Companies in
amounts in excess of five percent (5%) of Consolidated Net Worth, either
individually or in the aggregate.
(c) Except as set forth on Schedule 5.08 attached hereto,
the Consolidated Companies have obtained all necessary governmental permits,
licenses and approvals which are material to the operations conducted on their
respective properties, including without limitation, all required material
permits, licenses and approvals for (i) the emission of air pollutants or
contaminants, (ii) the treatment or pretreatment and discharge of waste water or
storm water, (iii) the treatment, storage, disposal or generation of hazardous
wastes, (iv) the withdrawal and usage of ground water or surface water, and (v)
the disposal of solid wastes.
SECTION 5.09. INSURANCE. The Consolidated Companies
currently maintain insurance with respect to their respective properties and
businesses, with financially sound and reputable insurers, having coverages
against losses or damages of the kinds customarily insured against by reputable
companies in the same or similar businesses, such insurance being in amounts no
less than those amounts which are customary for such companies under similar
circumstances. The Consolidated Companies have paid all material amounts of
insurance premiums now due and owing with respect to such insurance policies and
coverages, and such policies and coverages are in full force and effect.
SECTION 5.10. NO DEFAULT. None of the Consolidated Companies
is in default under or with respect to any Contractual Obligation in any respect
which is having or is reasonably expected to have a Materially Adverse Effect.
SECTION 5.11. NO BURDENSOME RESTRICTIONS. Except as set
forth on Schedule 5.11 or in any notice furnished to the Lenders pursuant to
Section 6.07 at or prior to the respective times the representations and
warranties set forth in this Section 5.11 are made or deemed to be made
hereunder, none of the Consolidated Companies is a party to or bound by any
Contractual Obligation or Requirement of Law which has had or would reasonably
be expected to have a Materially Adverse Effect.
SECTION 5.12. TAXES. Except as set forth on Schedule 5.12,
each of the Consolidated Companies has filed or caused to be filed all
declarations, reports and tax returns which are required to have been filed, and
has paid all taxes, custom duties, levies, charges and similar contributions
("taxes" in this Section 5.12) shown to be due and payable on said returns or on
any assessments made against it or its properties, and all other taxes, fees or
other charges imposed on it or any of its properties by any governmental
authority (other than those the amount or validity of which is currently being
contested in good faith by appropriate proceedings and
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with respect to which reserves in conformity with GAAP have been provided in its
books); and no tax liens have been filed and, to the knowledge of Intermet, no
claims are being asserted with respect to any such taxes, fees or other charges.
SECTION 5.13. SUBSIDIARIES. Except as disclosed on Schedule
5.01 or in any notice given to the Lenders pursuant to Section 6.07 at or prior
to the respective times this representation and warranty is made or deemed to be
made hereunder, Intermet has no Subsidiaries and neither Intermet nor any
Subsidiary is a joint venture partner or general partner in any partnership.
SECTION 5.14. FINANCIAL STATEMENTS. Intermet has furnished
to the Agent and the Lenders (i) the audited consolidated balance sheet as of
December 31, 1995 of Intermet and the related consolidated statements of income,
shareholders' equity and cash flows for the fiscal year then ended, including in
each case the related schedules and notes, (ii) the unaudited balance sheet of
Intermet presented on a consolidated basis as at the end of the second fiscal
quarter of 1996, and the related unaudited consolidated statements of income,
shareholders' equity and cash flows presented on a consolidated basis for the
year-to-date period then ended, setting forth in each case in comparative form
the figures for the corresponding quarter of Intermet's previous fiscal year.
The foregoing financial statements fairly present in all material respects the
consolidated financial condition of Intermet as at the dates thereof and results
of operations for such periods in conformity with GAAP consistently applied
(subject, in the case of the quarterly financial statements, to normal year-end
audit adjustments and the absence of certain footnotes). The Consolidated
Companies taken as a whole do not have any material contingent obligations,
contingent liabilities, or material liabilities for known taxes, long-term
leases or unusual forward or long-term commitments not reflected in the
foregoing financial statements or the notes thereto. Since December 31, 1995,
there have been no changes with respect to the Consolidated Companies which has
had or would reasonably be expected to have a Materially Adverse Effect.
SECTION 5.15. ERISA. Except as disclosed on Schedule 5.15 or
in any notice furnished to the Lenders pursuant to Section 6.07 at or prior to
the respective times the representations and warranties set forth in this
Section 5.15 are made or deemed to be made hereunder:
(a)(1) Identification of Plans. (A) None of the Consolidated
Companies nor any of their respective ERISA Affiliates maintains or contributes
to, or has during the past two years maintained or contributed to, any Plan that
is subject to Title IV of ERISA, and (B) none of the Consolidated Companies
maintains or contributes to any Foreign Plan;
(2) Compliance. Each Plan and each Foreign Plan maintained
by the Consolidated Companies have at all times been maintained, by their terms
and in operation, in compliance with all applicable laws, and the Consolidated
Companies are subject to no tax or penalty with respect to any Plan of such
Consolidated Company or any ERISA Affiliate thereof,
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including without limitation, any tax or penalty under Title I or Title IV of
ERISA or under Chapter 43 of the Tax Code, or any tax or penalty resulting from
a loss of deduction under Sections 404, or 419 of the Tax Code, where the
failure to comply with such laws, and such taxes and penalties, together with
all other liabilities referred to in this Section 5.15 (taken as a whole), would
in the aggregate have a Materially Adverse Effect;
(3) Liabilities. The Consolidated Companies are subject to
no liabilities (including withdrawal liabilities) with respect to any Plans or
Foreign Plans of such Consolidated Companies or any of their ERISA Affiliates,
including without limitation, any liabilities arising from Titles I or IV of
ERISA, other than obligations to fund benefits under an ongoing Plan and to pay
current contributions, expenses and premiums with respect to such Plans or
Foreign Plans, where such liabilities, together with all other liabilities
referred to in this Section 5.15 (taken as a whole), would in the aggregate have
a Materially Adverse Effect;
(4) Funding. The Consolidated Companies and, with respect to
any Plan which is subject to Title IV of ERISA, each of their respective ERISA
Affiliates, have made full and timely payment of all amounts (A) required to be
contributed under the terms of each Plan and applicable law, and (b) required to
be paid as expenses (including PBGC or other premiums) of each Plan, where the
failure to pay such amounts (when taken as a whole, including any penalties
attributable to such amounts) would have a Materially Adverse Effect. No Plan
subject to Title IV of ERISA has an "amount of unfunded benefit liabilities" (as
defined in Section 4001(a)(18) of ERISA, determined as if such Plan terminated
on any date on which this representation and warranty is deemed made, in any
amount which, together with all other liabilities referred to in this Section
5.15 (taken as a whole), would have a Materially Adverse Effect if such amount
were then due and payable. The Consolidated Companies are subject to no
liabilities with respect to post-retirement medical benefits in any amounts
which, together with all other liabilities referred to in this Section 5.15
(taken as a whole), would have a Materially Adverse Effect if such amounts were
then due and payable.
(b) With respect to any Foreign Plan, reasonable reserves
have been established in accordance with prudent business practice or where
required by ordinary accounting practices in the jurisdiction where the Foreign
Subsidiary maintains its principal place of business or in which the Foreign
Plan is maintained. The aggregate unfunded liabilities, after giving effect to
any reserves for such liabilities, with respect to such Foreign Plans, together
with all other liabilities referred to in this Section 5.15 (taken as a whole),
would not have a Materially Adverse Effect.
SECTION 5.16. PATENTS, TRADEMARKS, LICENSES, ETC. Except as
set forth on Schedule 5.16 or in any notice furnished to the Lenders pursuant to
Section 6.07 at or prior to the respective times the representations and
warranties set forth in this Section 5.16 are made or deemed to be made
hereunder, (i) the Consolidated Companies have obtained and hold in full force
and effect all material patents, trademarks, service marks, trade names,
copyrights, licenses and other such rights, free from burdensome restrictions,
which are necessary for the operation of
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their respective businesses as presently conducted, and (ii) to the best of
Intermet's knowledge, no product, process, method, service or other item
presently sold by or employed by any Consolidated Company in connection with
such business infringes any patents, trademark, service xxxx, trade name,
copyright, license or other right owned by any other person and there is not
presently pending, or to the knowledge of Intermet, threatened, any claim or
litigation against or affecting any Consolidated Company contesting such
Person's right to sell or use any such product, process, method, substance or
other item where the result of such failure to obtain and hold such benefits or
such infringement would have a Materially Adverse Effect.
SECTION 5.17. OWNERSHIP OF PROPERTY. Except as set forth on
Schedule 5.17, (i) each Consolidated Company that is not a Foreign Subsidiary
has good and marketable fee simple title to or a valid leasehold interest in all
of its real property and good title to, or a valid leasehold interest in, all of
its other property, and (ii) each Foreign Subsidiary owns or has a valid
leasehold interest in all of its real property and owns or has a valid leasehold
interest in, all of its other properties, in the case of clauses (i) and (ii) as
such properties are reflected in the con solidated balance sheet of the
Consolidated Companies as of December 31, 1995 referred to in Section 5.14,
other than properties disposed of in the ordinary course of business since such
date or as otherwise permitted by the terms of this Agreement, subject to no
Lien or title defect of any kind, except Liens permitted hereby and title
defects not constituting material impairments in the intended use for such
properties. The Consolidated Companies enjoy peaceful and undisturbed possession
under all of their respective leases.
SECTION 5.18. FINANCIAL CONDITION. On the Closing Date and
after giving effect to the transactions contemplated by this Agreement and the
other Credit Documents, including without limitation, the use of the proceeds of
the Loans as provided in Sections 2.01, each of the Credit Parties is Solvent.
SECTION 5.19. LABOR MATTERS. Since December 31, 1995, the
Consolidated Companies have experienced no strikes, labor disputes, slow downs
or work stoppages due to labor disagreements which have had, or would reasonably
be expected to have, a Materially Adverse Effect, and, to the best knowledge of
Intermet, there are no such strikes, disputes, slow downs or work stoppages
threatened against any Consolidated Company which if they occurred, would
reasonably be expected to have a Materially Adverse Effect. Since December 31,
1992, the hours worked and payment made to employees of the Consolidated
Companies have not been in violation in any material respect of the Fair Labor
Standards Act (in the case of Consolidated Companies that are not Foreign
Subsidiaries) or any other applicable law dealing with such matters. All
payments due from the Consolidated Companies, or for which any claim may be made
against the Consolidated Companies, on account of wages and employee health and
welfare insurance and other benefits have been paid or accrued as liabilities on
the books of the Consolidated Companies in all jurisdictions where the failure
to pay or accrue such liabilities
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would reasonably be expected to exceed five percent (5%) of Consolidated Net
Worth of Intermet in the aggregate.
SECTION 5.20. PAYMENT OR DIVIDEND RESTRICTIONS. Except as
set forth in Section 7.05 or described on Schedule 5.20 or as expressly
permitted by the terms of this Agreement, none of the Consolidated Companies is
party to or subject to any agreement or understanding restricting or limiting
the payment of any dividends or other distributions by any such Consolidated
Company.
SECTION 5.21. DISCLOSURE. No representation or warranty
contained in this Agreement (including the Schedules attached hereto) or in any
other document furnished from time to time pursuant to the terms of this
Agreement, contains or will contain any untrue statement of a material fact or
omits or will omit to state any material fact necessary to make the statements
herein or therein not misleading in any material respect as of the date made or
deemed to be made. Except as may be set forth herein (including the Schedules
attached hereto) or in any notice furnished to the Lenders pursuant to Section
6.07 at or prior to the respective times the representations and warranties set
forth in this Section 5.21 are made or deemed to be made hereunder, there is no
fact known to Intermet which is having, or is reasonably expected to have, a
Materially Adverse Effect.
ARTICLE VI.
AFFIRMATIVE COVENANTS
So long as any Commitment remains in effect hereunder or any
Note shall remain unpaid or any Letter of Credit shall remain outstanding,
Intermet will (unless waived in writing by the Required Lenders):
SECTION 6.01. CORPORATE EXISTENCE, ETC. Preserve and
maintain, and cause each of its Subsidiaries to preserve and maintain, its
corporate existence (except for mergers, divestitures and consolidations
permitted pursuant to Section 7.03), its material rights, franchises, and
licenses, and its material patents and copyrights (for the scheduled duration
thereof), trademarks, trade names, and service marks, necessary or desirable in
the normal conduct of its business, and its qualification to do business as a
foreign corporation in all jurisdictions where it conducts business or other
activities making such qualification necessary, where the failure to be so
qualified would reasonably be expected to have a Materially Adverse Effect.
SECTION 6.02. COMPLIANCE WITH LAWS, ETC. Comply, and cause
each of its Subsidiaries to comply with all Requirements of Law (including,
without limitation, the Environmental Laws) and Contractual Obligations
applicable to or binding on any of them where the failure to comply with such
Requirements of Law and Contractual Obligations would reasonably be expected to
have a Materially Adverse Effect (with the express understanding that
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with respect to noncompliance with Requirements of Laws, liabilities from
noncompliance involving amounts equal to or in excess of five percent (5%) of
Consolidated Net Worth in the aggregate shall be deemed to have a Materially
Adverse Effect).
SECTION 6.03. PAYMENT OF TAXES AND CLAIMS, ETC. Pay, and
cause each of its Subsidiaries to pay, (i) all taxes, assessments and
governmental charges imposed upon it or upon its property, and (ii) all claims
(including, without limitation, claims for labor, materials, supplies or
services) which might, if unpaid, become a Lien upon its property, unless, in
each case, the validity or amount thereof is being contested in good faith by
appropriate proceedings and adequate reserves are maintained with respect
thereto.
SECTION 6.04. KEEPING OF BOOKS. Keep, and cause each of its
Subsidiaries to keep, proper books of record and account, containing complete
and accurate entries of all their respective financial and business
transactions.
SECTION 6.05. VISITATION, INSPECTION, ETC. Permit, and cause
each of its Subsidiaries to permit, any representative of the Agent or any
Lender to visit and inspect any of its property, to examine its books and
records and to make copies and take extracts therefrom, and to discuss its
affairs, finances and accounts with its officers, all at such reasonable times
and as often as the Agent or such Lender may reasonably request after reasonable
prior notice to Intermet; provided, however, that at any time following the
occurrence and during the continuance of a Default or an Event of Default, no
prior notice to Intermet shall be required.
SECTION 6.06. INSURANCE; MAINTENANCE OF PROPERTIES.
(a) Maintain or cause to be maintained with financially
sound and reputable insurers, insurance with respect to its properties and
business, and the properties and business of its Subsidiaries, against loss or
damage of the kinds customarily insured against by reputable companies in the
same or similar businesses, such insurance to be of such types and in such
amounts as are customary for such companies under similar circumstances;
provided, however, that in any event Intermet shall use its best efforts to
maintain, or cause to be maintained, insurance in amounts and with coverages not
materially less favorable to any Consolidated Company as in effect on the date
of this Agreement, except where the costs of maintaining such insurance would,
in the judgment of both Intermet and the Agent, be excessive.
(b) Cause, and cause each of the Consolidated Companies to
cause, all properties used or useful in the conduct of its business to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, settlements and improvements thereof, all as in the
judgment of Intermet may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided, however, that
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nothing in this Section 6.06 shall prevent Intermet from discontinuing the
operation or maintenance of any such properties if such discontinuance is, in
the judgment of Intermet, desirable in the conduct of its business or the
business of any Consolidated Company.
SECTION 6.07. REPORTING COVENANTS. Furnish to each Lender:
(a) Annual Financial Statements. As soon as available and in
any event within 90 days after the end of each fiscal year of Intermet,
balance sheets of the Consolidated Companies as at the end of such
year, presented on a consolidated basis, and the related statements of
income, and cash flows of the Consolidated Companies for such fiscal
year, presented on a consolidated basis, setting forth in each case in
comparative form the figures for the previous fiscal year, all in
reasonable detail and accompanied by a report thereon of Ernst & Young,
L.L.P. or other independent public accountants of comparable recognized
national standing, which such report shall be unqualified as to going
concern and scope of audit and shall state that such financial
statements present fairly in all material respects the financial
condition as at the end of such fiscal year on a consolidated basis,
and the results of operations and statements of cash flows of the
Consolidated Companies for such fiscal year in accordance with GAAP and
that the examination by such accountants in connection with such
consolidated financial statements has been made in accordance with
generally accepted auditing standards;
(b) Quarterly Financial Statements. As soon as available and
in any event within 60 days after the end of each fiscal quarter of
Intermet (other than the fourth fiscal quarter), balance sheets of the
Consolidated Companies as at the end of such quarter presented on a
consolidated basis and the related statements of income, shareholders'
equity, and cash flows of the Consolidated Companies for such fiscal
quarter and for the portion of Intermet's fiscal year ended at the end
of such quarter, presented on a consolidated basis setting forth in
each case in comparative form the figures for the corresponding quarter
and the corresponding portion of Intermet's previous fiscal year, all
in reasonable detail and certified by the chief financial officer or
principal accounting officer of Intermet that such financial statements
fairly present in all material respects the financial condition of the
Consolidated Companies as at the end of such fiscal quarter on a
consolidated basis, and the results of operations and statements of
cash flows of the Consolidated Companies for such fiscal quarter and
such portion of Intermet's fiscal year, in accordance with GAAP
consistently applied (subject to normal year-end audit adjustments and
the absence of certain footnotes);
(c) No Default/Compliance Certificate. Together with the
financial statements required pursuant to subsections (a) and (b)
above, a certificate substantially in the form of Exhibit L attached
hereto of the president, chief executive officer, chief financial
officer or principal accounting officer of Intermet (i) to the effect
that, based upon a review of the activities of the Consolidated
Companies and such financial
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statements during the period covered thereby, there exists no Event of
Default and no Default under this Agreement, or if there exists an
Event of Default or a Default hereunder, specifying the nature thereof
and the proposed response thereto, and (ii) demonstrating in reasonable
detail compliance as at the end of such fiscal year or such fiscal
quarter with Section 6.08 and Sections 7.01 through 7.06;
(d) Auditor's No Default Certificate. Together with the
financial statements required pursuant to subsection (a) above, a
certificate of the accountants who prepared the report referred to
therein, to the effect that, based upon their audit, there exists no
Default or Event of Default under this Agreement, or if there exists a
Default or Event of Default hereunder, specifying the nature thereof;
(e) Annual Budget. No later than 30 days prior to the
beginning of each fiscal year, an annual financial plan and forecasted
balance sheets and statements of income and cash flows for the current
fiscal year for the Consolidated Companies presented on a consolidated
basis;
(f) Notice of Default. Promptly after any Executive Officer
of Intermet has notice or knowledge of the occurrence of an Event of
Default or a Default, a certificate of the chief financial officer or
principal accounting officer of Intermet specifying the nature thereof
and the proposed response thereto;
(g) Litigation and Investigations. Promptly after (i) the
occurrence thereof, notice of the institution of or any material
adverse development in any material action, suit or proceeding or any
governmental investigation or any arbitration, before any court or
arbitrator or any governmental or administrative body, agency or
official, against any Consolidated Company, or any material property of
any thereof, or (ii) actual knowledge thereof, notice of the threat of
any such action, suit, proceeding, investigation or arbitration;
(h) Environmental Notices. Promptly after receipt thereof,
notice of any actual or alleged violation, or notice of any action,
claim or request for information, either judicial or administrative,
from any governmental authority relating to any actual or alleged
claim, notice of potential responsibility under or violation of any
Environmental Law, or any actual or alleged spill, leak, disposal or
other release of any waste, petroleum product, or hazardous waste or
Hazardous Substance by any Consolidated Company which could result in
penalties, fines, claims or other liabilities to any Consolidated
Company in amounts in excess of $1,000,000;
(i) ERISA. (A)(i) Promptly after the occurrence thereof with
respect to any Plan of any Consolidated Company or any ERISA Affiliate
thereof, or any trust
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established thereunder, notice of (A) a "reportable event" described in
Section 4043 of ERISA and the regulations issued from time to time
thereunder (other than a "reportable event" not subject to the
provisions for 30-day notice to the PBGC under such regulations), or
(B) any other event which could subject any Consolidated Company to any
tax, penalty or liability under Title I or Title IV of ERISA or Chapter
43 of the Tax Code, or any tax or penalty resulting from a loss of
deduction under Sections 404 or 419 of the Tax Code, or any tax,
penalty or liability under any Requirement of Law applicable to any
Foreign Plan, where any such taxes, penalties or liabilities exceed or
could exceed $1,000,000 in the aggregate;
(ii) Promptly after such notice must be provided
to the PBGC, or to a Plan participant, beneficiary or alternative
payee, any notice required under Section 101(d), 302(f)(4), 303, 307,
4041(b)(1)(A) or 4041(c)(1)(A) of ERISA or under Section 401(a)(29) or
412 of the Tax Code with respect to any Plan of any Consolidated
Company or any ERISA Affiliate thereof;
(iii) Promptly after receipt, any notice received
by any Consolidated Company or any ERISA Affiliate thereof concerning
the intent of the PBGC or any other governmental authority to terminate
a Plan of such Company or ERISA Affiliate thereof which is subject to
Title IV of ERISA, to impose any liability on such Company or ERISA
Affiliate under Title IV of ERISA or Chapter 43 of the Tax Code;
(iv) Upon the request of the Agent, promptly upon
the filing thereof with the Internal Revenue Service ("IRS") or the
Department of Labor ("DOL"), a copy of IRS Form 5500 or annual report
for each Plan of any Consolidated Company or ERISA Affiliate thereof
which is subject to Title IV of ERISA;
(v) Upon the request of the Agent, (A) true and
complete copies of any and all documents, government reports and IRS
determination or opinion letters or rulings for any Plan of any
Consolidated Company from the IRS, PBGC or DOL, (B) any reports filed
with the IRS, PBGC or DOL with respect to a Plan of the Consolidated
Companies or any ERISA Affiliate thereof, or (C) a current statement of
withdrawal liability for each Multiemployer Plan of any Consolidated
Company or any ERISA Affiliate thereof;
(B) Promptly upon any Consolidated Company
becoming aware thereof, notice that (i) any material contributions to
any Foreign Plan have not been made by the required due date for such
contribution and such default cannot immediately be remedied, (ii) any
Foreign Plan is not funded to the extent required by the law of the
jurisdiction whose law governs such Foreign Plan based on the actuarial
assumptions reasonably used at any time, or (iii) a material change is
anticipated to any Foreign Plan that may have a Materially Adverse
Effect.
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(j) Liens. Promptly upon any Consolidated Company becoming
aware thereof, notice of the filing of any federal statutory Lien, tax
or other state or local government Lien or any other Lien affecting
their respective properties, other than those Liens expressly permitted
by Section 7.02;
(k) Public Filings, Etc. Promptly upon the filing thereof or
otherwise becoming available, copies of all financial statements,
annual, quarterly and special reports, proxy statements and notices
sent or made available generally by Intermet to its public security
holders, of all regular and periodic reports and all registration
statements and prospectuses, if any, filed by any of them with any
securities exchange, and of all press releases and other statements
made available generally to the public containing material developments
in the business or financial condition of Intermet and the other
Consolidated Companies;
(l) Burdensome Restrictions, Etc. Promptly upon the
existence or occurrence thereof, notice of the existence or occurrence
of (i) any Contractual Obligation or Requirement of Law described in
Section 5.11, (ii) failure of any Consolidated Company to hold in full
force and effect those material trademarks, service marks, patents,
trade names, copyrights, licenses and similar rights necessary in the
normal conduct of its business, and (iii) any strike, labor dispute,
slow down or work stoppage as described in Section 5.19;
(m) New Subsidiaries. Within 30 days after the formation or
acquisition of any Subsidiary, or any other event resulting in the
creation of a new Subsidiary, or the domestication of any Foreign
Subsidiary, notice of the formation or acquisition of such Subsidiary
or such occurrence, including a description of the assets of such
entity, the activities in which it will be engaged, and such other
information as the Agent may request; and
(n) Other Information. With reasonable promptness, any other
information provided under the Note Purchase Agreement and such other
information about the Consolidated Companies as the Agent or any Lender
may reasonably request from time to time.
SECTION 6.08. FINANCIAL COVENANTS.
(a) Fixed Charge Coverage Ratio. Maintain as of the last day
of each fiscal quarter, a Fixed Charge Coverage Ratio equal to or greater than
2.0:1.0.
(b) Leverage Ratio. Maintain as of the last day of each
fiscal quarter, a maximum Leverage Ratio of less than or equal to 60%; provided
that in the event that Intermet
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consummates an Acquisition after the Closing Date which affects its compliance
with this subsection (b), the maximum Leverage Ratio permitted hereunder shall
be 72.5% for each of the fiscal quarters ending during the twelve-month period
immediately succeeding such Acquisition and the maximum Leverage Ratio permitted
hereunder shall be reduced to 60% on the next fiscal quarter end thereafter and
shall remain a maximum ratio of 60% regardless of any other Acquisitions
occurring thereafter.
(c) Funded Debt to Consolidated EBITDA. Maintain as of the
last day of each fiscal quarter, a maximum ratio of Funded Debt to Consolidated
EBITDA calculated for the immediately preceding four fiscal quarters of less
than or equal to 3.5:1.0.
(d) Second Fiscal Quarter 1996 Calculations. Schedule 6.08
sets forth the calculation of the financial covenant amounts, ratios, and
percentages required by paragraphs (a) through (c) of this Section 6.08
calculated as of June 30, 1996.
SECTION 6.09. NOTICES UNDER CERTAIN OTHER INDEBTEDNESS.
Immediately upon its receipt thereof, Intermet shall furnish the Agent a copy of
any notice received by it or any other Consolidated Company from the holder(s)
of Indebtedness of the Consolidated Companies (or from any trustee, agent,
attorney, or other party acting on behalf of such holder(s)) in an amount which,
in the aggregate, exceeds $5,000,000, where such notice states or claims (i) the
existence or occurrence of any default or event of default with respect to such
Indebtedness under the terms of any indenture, loan or credit agreement,
debenture, note, or other document evidencing or governing such Indebtedness, or
(ii) the existence or occurrence of any event or condition which requires or
permits holder(s) of any Indebtedness to exercise rights under any Change in
Control Provision.
SECTION 6.10. ADDITIONAL CREDIT PARTIES AND COLLATERAL.
Unless the Required Lenders otherwise agree, promptly after (i) the formation or
acquisition (provided that nothing in this Section shall be deemed to authorize
the acquisition of any entity not otherwise permitted hereunder) of any
Subsidiary not listed on Schedule 5.01 (unless such Subsidiary holds no assets
and conducts no business), (ii) the domestication of any Foreign Subsidiary, or
(iii) the xx xxxxxxxx of any other event creating a new Subsidiary, Intermet
shall execute and deliver, and cause to be executed and delivered (x) in the
case of Foreign Subsidiary, if, in the reasonable opinion of Intermet's
accountants, delivery of a Guaranty Agreement would cause Intermet to be subject
to tax on the undistributed earnings and profits of such Subsidiary pursuant to
Subpart F of Part III, Subchapter N of the Internal Revenue Code, a Pledge
Agreement with respect to 49% of the capital stock of such Subsidiary if it is a
Foreign Subsidiary directly owned by Intermet or a Subsidiary that is not, and
is not directly or indirectly controlled by, a Foreign Subsidiary, and (y) a
Guaranty Agreement from each such Subsidiary that is not a Foreign Subsidiary
whose stock has been pledged to the extent and in accordance with subsection (x)
hereof, together with related documents with respect to such new Subsidiary (or
the pledgor of its stock) of the kind described in Section 4.01 (e), (f), (g),
(h) and (o), all in form and substance satisfactory to the Agent and the
Required Lenders.
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SECTION 6.11. AMENDMENT TO NOTE PURCHASE AGREEMENT AND
INTERCREDITOR AGREEMENT. Promptly, and in any event within sixty (60) days after
the Closing Date, deliver, or cause to be delivered to the Agent in form and
substance satisfactory to the Agent and the Required Lenders, (i) an amendment
to the Note Purchase Agreement conforming the representations and warranties,
covenants, events of default and financial definitions used therein to the terms
of this Agreement, and (ii) a duly executed amendment to the Intercreditor
Agreement evidencing the modifications made herein.
ARTICLE VII.
NEGATIVE COVENANTS
So long as any Commitment remains in effect hereunder or any
Note shall remain unpaid or any Letter of Credit Obligation shall remain
outstanding, Intermet will not and will not permit any Subsidiary to (unless
waived in writing by the Required Lenders):
SECTION 7.01. INDEBTEDNESS. Create, incur, assume or suffer
to exist any Indebtedness, other than:
(a) Indebtedness under this Agreement and otherwise
outstanding on the Closing Date as set forth on Schedule 7.01 attached
hereto;
(b) unsecured current liabilities (other than liabilities
for borrowed money or liabilities evidenced by promissory notes, bonds
or similar instruments) incurred in the ordinary course of business;
(c) Indebtedness of Intermet pursuant to the Note Purchase
Agreement and secured by Liens which are pari passu with Liens on such
collateral in favor of the Lenders securing the Obligations hereunder
and governed by the terms of the Intercreditor Agreement;
(d) Investments in the form of intercompany loans permitted
by Sections 7.06(a) hereof;
(e) Subordinated Debt which is unsecured and approved as to
terms and conditions by the Agent and the Required Lenders;
(f) Indebtedness of a Person which is acquired by or
consolidated with a Consolidated Company as long as such Indebtedness
is not obtained in contemplation of such acquisition;
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(g) purchase money Indebtedness to the extent secured by a
Lien permitted pursuant to Section 7.02(f); and
(h) additional Indebtedness of Intermet which is pari passu
in all material respects with the Obligations, without limiting the
foregoing, such Indebtedness will not have the benefit of any security
or guaranties not benefitting the Obligations and will have
representations and warranties, covenants, events of default and
conditions to borrowing which are not more restrictive than the
provisions of this Agreement.
SECTION 7.02. LIENS. Create, incur, assume or suffer to
exist any Lien on any of its property now owned or hereafter acquired to secure
any Indebtedness other than:
(a) Liens existing on the Closing Date and disclosed on
Schedule 7.02 and Liens in favor of the Agent and/or the Lenders to
secure the Obligations;
(b) Liens for taxes not yet due, and Liens for taxes or
Liens imposed by ERISA which are being contested in good faith by
appropriate proceedings and with respect to which adequate reserves are
being maintained;
(c) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by law
created in the ordinary course of business for amounts not yet due or
which are being contested in good faith by appropriate proceedings and
with respect to which adequate reserves are being maintained;
(d) Liens incurred or deposits made in the ordinary course
of business in connection with workers' compensation, unemployment
insurance and other types of social security, or to secure the
performance of tenders, statutory obligations, surety and appeal bonds,
bids, leases, government contracts, performance and return-of-money
bonds and other similar obligations (exclusive of obligations for the
payment of borrowed money);
(e) Liens permitted by Section 7.01(c) and (h);
(f) to the extent that, on any date of determination, the
value of Margin Stock of Intermet and its Subsidiaries, whether now
owned or hereafter acquired, in the aggregate exceeds twenty-five
percent (25%) of the value of the total assets of Intermet and its
Subsidiaries on such date which assets are subject to the restrictions
of this Section 7.2, Liens encumbering such excess Margin Stock; and
(g) Liens (other than those permitted by paragraphs (a)
through (f) of this Section 7.02) encumbering assets having an Asset
Value not greater than five percent (5%) of Consolidated Net Worth of
Intermet in the aggregate at any one time.
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SECTION 7.03. MERGERS, ACQUISITIONS, DIVESTITURES.
(a) Merge or consolidate with any other Person, except that
the foregoing restrictions shall not be applicable to:
(i) mergers or consolidations of (x) any
Subsidiary with any other Subsidiary which is a Guarantor or (y) any
Subsidiary with Intermet; or
(ii) mergers or consolidations which result in
Acquisitions of Persons engaged in businesses in which Intermet is
engaged on the Closing Date or substantially related thereto and as
otherwise permitted by Section 7.10 of this Agreement where the
surviving corporation is a wholly-owned Subsidiary of Intermet (or will
become a wholly-owned Subsidiary within six (6) months of the such
Acquisition) and such Acquisition is in compliance with subsection (c)
hereof;
provided that before and after giving effect to any such merger or
consolidations, (w) Intermet is in compliance with Section 6.08 hereof (as
demonstrated by delivery of pro forma financial covenants calculations prepared
in compliance with clause (c) hereof); (x) no other Default or Event of Default
exists hereunder; (y) in the event of such merger or consolidation, the
surviving Person is a Consolidated Company and complies with Section 6.10
hereof, if applicable, and (z) Intermet is the surviving corporation in
connection with any merger or consolidation to which it is a party;
(b) Sell or otherwise dispose of the capital stock of a
Subsidiary of Intermet except as permitted pursuant to Section 7.04(c); or
(c) make or permit any Acquisition other than an Acquisition
of Persons engaged in businesses in which Intermet is engaged on the Closing
Date or substantially related thereto and as otherwise permitted pursuant to
Section 7.10 of this Agreement; provided that:
(i) after giving effect to such Acquisition,
assets comprising such Acquisition are owned by Intermet or
a wholly-owned Subsidiary of Intermet, or, in the case of a
stock purchase, such Person is a wholly-owned Subsidiary of
Intermet or is merged into Intermet or a wholly-owned
Subsidiary of Intermet;
(ii) prior to the consummation of such
Acquisition, Intermet provides to the Lenders calculations
evidencing Intermet's compliance on a pro forma basis with
the financial covenants set forth in Section 6.08 hereof on
the last day of the immediately preceding fiscal quarter of
Intermet, calculated with respect to the immediately
preceding four fiscal quarters of Intermet as if the
Acquisition had been consummated on the first day of such
period;
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(iii) such Acquisition shall have been approved in
advance by a majority of the board of directors of the
seller; and
(iv) no Default or Event of Default shall exist
hereunder or shall result therefrom and Intermet shall
comply with the provisions of Section 6.10 hereof.
SECTION 7.04. ASSET SALES.
Sell, lease or otherwise dispose of its accounts, property, stock of
its Subsidiaries or other assets; provided, however, that the foregoing
restrictions on Asset Sales shall not be applicable to:
(a) sales of inventory in the ordinary course of business;
(b) sales of equipment or other personal property being
replaced by other equipment or other personal property purchased as a
capital expenditure item; or
(c) Asset Sales comprised of stock of Subsidiaries or all or
substantially all of the assets of any Subsidiary where, on the date of
execution of a binding obligation to make such Asset Sale (provided
that if the Asset Sale is not consummated within six (6) months of such
execution, then on the date of consummation of such Asset Sale rather
than on the date of execution of such binding obligation):
(x) after giving effect to the proposed Asset
Sale, the assets which are the subject of the proposed Asset
Sale, together with all other such Asset Sales of the
Consolidated Companies during the immediately preceding four
fiscal quarters of Intermet, did not generate twenty percent
(20%) or more of Consolidated EBITDA during the then most
recently ended four fiscal quarters of Intermet; and
(y) after giving effect to the proposed Asset
Sale, the aggregate Asset Value of all such Asset Sales of
the Consolidated Companies since the Closing Date would not
exceed thirty (30%) of the Net Fixed Assets of Intermet as
determined as of the last day of the most recently ended
fiscal quarter of Intermet; or
(d) Other Asset Sales (other than sales of capital stock of
Subsidiaries or all or substantially all of the assets of any
Subsidiary), where, on the date of execution of a binding obligation to
make such Asset Sale (provided that if the Asset Sale is not
consummated within six (6) months of such execution, then on the date
of consummation of such Asset Sale rather than on the date of execution
of such binding obligation), after
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giving effect to the proposed Asset Sale, the aggregate Asset Value of
all Asset Sales made pursuant to this subparagraph (d) by the
Consolidated Companies since the Closing Date would not exceed ten
percent (10%) of Intermet's Net Fixed Assets as of the last day of the
most recently ended fiscal quarter of Intermet; or
(e) to the extent that, on any date of determination, the
value of Margin Stock of Intermet and its Subsidiaries, whether now
owned or hereafter acquired, in the aggregate exceeds twenty-five
percent (25%) of the total assets of Intermet and its Subsidiaries on
such date which assets are subject to the restriction of this Section
7.04, sales of such excess Margin Stock for fair value where the
proceeds of such sale are held by a Consolidated Company as cash or
invested in cash equivalents such as certificates of deposit, U.S.
government securities, commercial paper with a term of 90 days or less
which is rated A-1/P-1 or other money market instruments;
provided that notwithstanding the foregoing, no transaction pursuant to clauses
(c) or (d) above shall be permitted if any Default or Event of Default exists at
the time of such transaction or would exist as a result of such transaction.
Upon the consummation of the sale of any capital stock of a Subsidiary
pursuant to subsection (c) above, which capital stock is pledged to the Agent
for the benefit of the Lenders, the Agent and the Lenders shall release the Lien
upon such stock upon the request of Intermet, and the Lenders hereby authorize
the Agent to do so.
SECTION 7.05. DIVIDENDS, ETC. Intermet shall not (a) declare
or pay any dividend on any class of its stock, or (b) make any payment to
purchase, redeem, retire or acquire any Subordinated Debt or stock or any
option, warrant, or other right to acquire such Subordinated Debt or stock
(each, a "Restricted Payment"), other than:
(i) dividends payable solely in shares of any
class of its stock; and
(ii) cash dividends declared and paid, and all
other Restricted Payments made, after the Closing Date in an aggregate
amount not to exceed the sum of (x) $25,000,000, plus (y) fifty percent
(50%) of Consolidated Net Income earned during the period commencing on
June 30, 1996 and ending on the last day of the most recently ended
fiscal quarter of Intermet (such period to be treated as one accounting
period taking into account 100% of Consolidated Net Losses during such
period);
provided, however, no such dividend or other Restricted Payment may be declared
or paid pursuant to clause (ii) above unless no Default or Event of Default
exists at the time of such declaration or Restricted Payment, or would exist as
a result of such declaration or Restricted Payment.
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SECTION 7.06. INVESTMENTS, LOANS, ETC. Make, permit or hold
any Investments other than:
(a) Investments in Subsidiaries which are Guarantors under
this Agreement, whether such Subsidiaries are Guarantors on the Closing
Date or become Guarantors in accordance with Section 6.10 after the
Closing Date; provided, however, nothing in this Section 7.06 shall be
deemed to authorize an Investment pursuant to this subsection (a) in
any entity that is not a Guarantor prior to such Investment;
(b) Investments in the following securities:
(i) direct obligations of the United States or any
agency thereof, or obligations guaranteed by the United States or any
agency thereof, in each case supported by the full faith and credit of
the United States and maturing within one year from the date of
creation thereof;
(ii) commercial paper maturing within one year
from the date of creation thereof rated in the highest grade by a
nationally recognized credit rating agency;
(iii) time deposits maturing within one year from
the date of creation thereof with, including certificates of deposit
issued by, any office located in the United States of any bank or trust
company which is organized under the laws of the United States or any
state thereof and has capital, surplus and undivided profits
aggregating at least $500,000,000, including without limitation, any
such deposits in Eurodollars issued by a foreign branch of any such
bank or trust company;
(iv) mid-term notes of corporations existing under
the laws of the United States rated in the highest grade by a
nationally recognized credit rating agency;
(v) municipal "lower floater" bonds rated A or
better (or backed by a letter of credit rated A or better) by a
nationally recognized credit rating agency;
(c) Investments made by Plans and Foreign Plans;
(d) Investments outstanding on the Closing Date and listed
on Schedule 7.06 hereto; and
(e) Investments (other than those permitted by paragraphs
(a) through (d) above), including loans to employees, officers and
other Persons, in an aggregate amount not to exceed five percent (5%)
of Consolidated Net Worth at any one time outstanding; provided that,
Investments in Subsidiaries which are not Guarantors are expressly
prohibited by this Section 7.06.
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SECTION 7.07. SALE AND LEASEBACK TRANSACTIONS. Sell or
transfer any property, real or personal, whether now owned or hereafter
acquired, and thereafter rent or lease such property or other property which any
Consolidated Company intends to use for substantially the same purpose or
purposes as the property being sold or transferred.
SECTION 7.08. TRANSACTIONS WITH AFFILIATES.
(a) Enter into any material transaction or series of related
transactions which in the aggregate would be material, whether or not in the
ordinary course of business, with any Affiliate of any Consolidated Company (but
excluding any Affiliate which is also a Consolidated Company), other than on
terms and conditions substantially as favorable to such Consolidated Company as
would be obtained by such Consolidated Company at the time in a comparable
arm's-length transaction with a Person other than an Affiliate; and
(b) Convey or transfer to any other Person (including any
other Consolidated Company) any real property, buildings, or fixtures used in
the manufacturing or production operations of any Consolidated Company, or
convey or transfer to any other Consolidated Company any other assets (excluding
conveyances or transfers in the ordinary course of business) if at the time of
such conveyance or transfer any Default or Event of Default exists or would
exist as a result of such conveyance or transfer.
SECTION 7.09. PREPAYMENTS OF SUBORDINATED DEBT IN VIOLATION
THEREOF. Directly or indirectly, prepay, purchase, redeem, retire, defease or
otherwise acquire, or make any optional payment on account of any principal of,
interest on, or premium payable in connection with any of its Subordinated Debt,
in each case, which is a violation of the subordination provisions of such
Subordinated Debt.
SECTION 7.10. CHANGES IN BUSINESS. Enter into any business
which is substantially different from that presently conducted by the
Consolidated Companies taken as a whole (which includes iron and aluminum
foundry operations and machining); provided that, Intermet and the Consolidated
Companies may make Acquisitions of, and Investments in, (to the extent permitted
by this Agreement) Persons engaged in an unrelated business as long as the total
revenues of such Persons resulting from unrelated businesses (or total revenues
generated by such assets used in unrelated businesses in the case of a purchase
of assets), as determined for the most recently ended four fiscal quarters of
such Person in accordance with GAAP, do not exceed twenty percent (20%) of Total
Sales of the Consolidated Companies for the most recently ended four fiscal
quarters of Intermet.
SECTION 7.11. LIMITATION ON PAYMENT RESTRICTIONS AFFECTING
CONSOLIDATED COMPANIES. Create or otherwise cause or suffer to exist or become
effective, any consensual encumbrance or restriction on the ability of any
Consolidated Company to (i) pay dividends or
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make any other distributions on such Consolidated Company's stock, or (ii) pay
any indebtedness owed to Intermet or any other Consolidated Company, or (iii)
transfer any of its property or assets to Intermet or any other Consolidated
Company, except any consensual encumbrance or restriction existing under the
Credit Documents or the Pledge Agreement (as defined in the Note Purchase
Agreement) (as originally executed) or as set forth on Schedule 5.20.
SECTION 7.12. ACTIONS UNDER CERTAIN DOCUMENTS.
(a) Without the prior written consent of the Agent and the
Required Lenders, modify, amend or supplement the Note Purchase Agreement to (i)
increase the principal amount of the indebtedness thereunder, (ii) increase the
interest rate thereunder, (iii) modify any requirement of prepayment or
repayment thereunder which would shorten the final maturity or average life of
the indebtedness outstanding thereunder or make the requirement of prepayment
more onerous, or (iv) make any more onerous any other provision thereof.
(b) Without the prior written consent of the Agent and the
Required Lenders, modify, amend or supplement any agreement governing
Subordinated Debt to (i) increase the principal amount of the indebtedness
thereunder, (ii) increase the interest rate thereunder, (iii) modify any
requirement of prepayment or repayment thereunder which would shorten the final
maturity or average life of the indebtedness outstanding thereunder or make the
requirement of prepayment more onerous, (iv) make any more onerous any other
provision thereof, or (v) amend or modify the subordination provisions thereof.
ARTICLE VIII.
EVENTS OF DEFAULT
Upon the occurrence and during the continuance of any of the
following specified events (each an "Event of Default"):
SECTION 8.01. PAYMENTS. Intermet shall fail to make promptly
when due (including, without limitation, by mandatory prepayment) any principal
payment with respect to the Loans, or Intermet shall fail to make within five
(5) days after the due date thereof any payment of interest, fee or other amount
payable hereunder or any of the Obligations;
SECTION 8.02. COVENANTS WITHOUT NOTICE. Intermet shall fail
to observe or perform any covenant or agreement contained in Sections 6.07(f),
6.08, 6.11, 7.01 through 7.07, 7.09 through 7.12;
SECTION 8.03. OTHER COVENANTS. Intermet shall fail to
observe or perform any covenant or agreement contained in this Agreement, other
than those referred to in Sections 8.01 and 8.02, and, if capable of being
remedied, such failure shall remain unremedied for thirty (30)
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days after the earlier of (i) Intermet's obtaining knowledge thereof, or (ii)
written notice thereof shall have been given to Intermet by Agent or any Lender;
SECTION 8.04. REPRESENTATIONS. Any representation or
warranty made or deemed to be made by Intermet or any other Credit Party or by
any of its officers under this Agreement or any other Credit Document (including
the Schedules attached thereto), or any certificate or other document submitted
to the Agent or the Lenders by any such Person pursuant to the terms of this
Agreement or any other Credit Document, shall be incorrect in any material
respect when made or deemed to be made or submitted;
SECTION 8.05. NON-PAYMENTS OF OTHER INDEBTEDNESS. Any
Consolidated Company shall fail to make when due (whether at stated maturity, by
acceleration, on demand or otherwise, and after giving effect to any applicable
grace period) any payment of principal of or interest on any Indebtedness (other
than the Obligations) exceeding $5,000,000 in the aggregate;
SECTION 8.06. DEFAULTS UNDER OTHER AGREEMENTS. Any
Consolidated Company shall fail to observe or perform within any applicable
grace period any covenants or agreements contained in any agreements or
instruments relating to any of its Indebtedness exceeding $5,000,000 in the
aggregate, or any other event shall occur if the effect of such failure or other
event is to accelerate, or to permit the holder of such Indebtedness or any
other Person to accelerate, the maturity of such Indebtedness; or any such
Indebtedness shall be required to be prepaid (other than by a regularly
scheduled required prepayment) in whole or in part prior to its stated maturity;
SECTION 8.07. BANKRUPTCY. Intermet or any other Consolidated
Company shall commence a voluntary case concerning itself under the Bankruptcy
Code or applicable foreign bankruptcy laws; or an involuntary case for
bankruptcy is commenced against any Consolidated Company and the petition is not
controverted within 10 days, or is not dismissed within 60 days, after
commencement of the case; or a custodian (as defined in the Bankruptcy Code) or
similar official under applicable foreign bankruptcy laws is appointed for, or
takes charge of, all or any substantial part of the property of any Consolidated
Company; or any Consolidated Company commences proceedings of its own bankruptcy
or to be granted a suspension of payments or any other proceeding under any
reorganization, arrangement, adjustment of debt, relief of debtors, dissolution,
insolvency or liquidation or similar law of any jurisdiction, whether now or
hereafter in effect, relating to any Consolidated Company or there is commenced
against any Consolidated Company any such proceeding which remains undismissed
for a period of 60 days; or any Consolidated Company is adjudicated insolvent or
bankrupt; or any order of relief or other order approving any such case or
proceeding is entered; or any Consolidated Company suffers any appointment of
any custodian or the like for it or any substantial part of its property to
continue undischarged or unstayed for a period of 60 days; or any Consolidated
Company makes a general assignment for the benefit of creditors; or any
Consolidated Company shall fail to pay, or shall
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state that it is unable to pay, or shall be unable to pay, its debts generally
as they become due; or any Consolidated Company shall call a meeting of its
creditors with a view to arranging a composition or adjustment of its debts; or
any Consolidated Company shall by any act or failure to act indicate its consent
to, approval of or acquiescence in any of the foregoing; or any corporate action
is taken by any Consolidated Company for the purpose of effecting any of the
foregoing;
SECTION 8.08. ERISA. A Plan or Foreign Plan of a
Consolidated Company or a Plan subject to Title IV of ERISA of any of its ERISA
Affiliates:
(i) shall fail to be funded in accordance with the
minimum funding standard required by applicable law, the terms of such
Plan or Foreign Plan, Section 412 of the Tax Code or Section 302 of
ERISA for any plan year or a waiver of such standard is sought or
granted with respect to such Plan or Foreign Plan under applicable law,
the terms of such Plan or Foreign Plan or Section 412 of the Tax Code
or Section 303 of ERISA; or
(ii) is being, or has been, terminated or the
subject of termination proceedings under applicable law or the terms of
such Plan or Foreign Plan; or
(iii) shall require a Consolidated Company to
provide security under applicable law, the terms of such Plan or
Foreign Plan, Section 401 or 412 of the Tax Code or Section 306 or 307
of ERISA; or
(iv) results for any reason, in a liability
(including without limitation, withdrawal liability) to a Consolidated
Company under applicable law, the terms of such Plan or Foreign Plan,
or Title IV of ERISA;
and there shall result from any such failure, waiver, termination or other event
a liability to the PBGC (or any similar Person with respect to any Foreign
Plan), a Plan or any other Person that would have a Materially Adverse Effect.
SECTION 8.09. MONEY JUDGMENT. A judgment or order for the
payment of money in excess of $5,000,000 or otherwise having a Materially
Adverse Effect shall be rendered against Intermet or any other Consolidated
Company and such judgment or order shall continue unsatisfied (in the case of a
money judgment) and in effect for a period of 30 days during which execution
shall not be effectively stayed or deferred (whether by action of a court, by
agreement or otherwise);
SECTION 8.10. OWNERSHIP OF CREDIT PARTIES AND PLEDGED
ENTITIES. If Intermet shall at any time fail to own and control one hundred
percent (100%) of the voting stock of any Credit Party or entity whose stock is
pledged to the Lenders, either directly or indirectly through a wholly-owned
Subsidiary of Intermet, except for (x) as a result of any Asset Sale permitted
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pursuant to Section 7.04(c) hereof, and (y) with respect to any Credit Party or
Foreign Subsidiary whose stock is pledged to the Lenders after the Closing Date
where Intermet shall, directly or indirectly, maintain ownership and control of
the percentage of voting stock owned and controlled as of the date such Person
became a Credit Party hereunder or a Foreign Subsidiary or such greater
percentage as shall thereafter be obtained, directly or indirectly by Intermet;
SECTION 8.11. CHANGE IN CONTROL OF INTERMET. (i) Any
"person" or "group" (within the meaning of Sections 13(d) and 14(d)(2) of the
Exchange Act) shall become the "beneficial owner(s)" (as defined in said Rule
13d-3) of more than fifty percent (50%) of the shares of the outstanding common
stock of Intermet entitled to vote for members of Intermet's board of directors,
(ii) any event or condition shall occur or exist which, pursuant to the terms of
any Change in Control Provision, requires or permits the holder(s) of
Indebtedness of any Consolidated Company to require that such Indebtedness be
redeemed, repurchased, defeased, prepaid or repaid, in whole or in part, or the
maturity of such Indebtedness to be accelerated in any respect, or (iii) Xxxx
Xxxxxxxxx or another Person possessing substantially equivalent qualifications,
background, proven record of success in running a public company and ability
shall cease to hold the position and actively carry out the duties of Chairman
of the Board of Directors of Intermet.
SECTION 8.12. DEFAULT UNDER OTHER CREDIT DOCUMENTS. There
shall exist or occur any "Event of Default" as provided under the terms of any
other Credit Document, or any Credit Document ceases to be in full force and
effect or the validity or enforceability thereof is disaffirmed by or on behalf
of Intermet or any other Credit Party, or at any time it is or becomes unlawful
for Intermet or any other Credit Party to perform or comply with its obligations
under any Credit Document, or the obligations of Intermet or any other Credit
Party under any Credit Document are not or cease to be legal, valid and binding
on Intermet or any such Credit Party or the Agent ceases to hold a perfected
lien on the Pledged Stock subject only to Liens permitted by the terms of this
Credit Agreement; or
SECTION 8.13. ATTACHMENTS. An attachment or similar action
shall be made on or taken against any of the assets of any Consolidated Company
with an Asset Value exceeding $5,000,000 in aggregate and is not removed,
suspended or enjoined within 30 days of the same being made or any suspension or
injunction being lifted;
then, and in any such event, and at any time thereafter if any Event of Default
shall then be continuing, the Agent may, with the consent of the Required
Lenders, and upon the written (including telecopied) or telex request of the
Required Lenders, shall, by written notice to Intermet, take any or all of the
following actions, without prejudice to the rights of the Agent, any Lender or
the holder of any Note to enforce its claims against Intermet or any other
Credit Party: (i) declare all Commitments terminated, whereupon the pro rata
Commitments of each Lender shall terminate immediately and any commitment fee
shall forthwith become due and
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payable without any other notice of any kind; and (ii) declare the principal of
and any accrued interest on the Loans, and all other Obligations owing
hereunder, including without limitation, an amount equal to the maximum amount
which would be available at any time to be drawn under all Letters of Credit
then outstanding (whether or not any beneficiary under any Letter of Credit
shall have presented, or shall be entitled at such time to present, the drafts
or other documents required to draw under such Letter of Credit), to be,
whereupon the same shall become, forthwith due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
Intermet; provided, that, if an Event of Default specified in Section 8.07 shall
occur, the result which would occur upon the giving of written notice by the
Agent to any Credit Party, as specified in clauses (i) and (ii) above, shall
occur automatically without the giving of any such notice; and (iii) exercise
any rights or remedies under the Security Documents. As long as any Letter of
Credit shall remain outstanding, any amounts described in clause (ii) above with
respect to Letters of Credit, when received by the Agent, shall be deposited in
a cash collateral account as cash collateral for the obligations of Intermet
under Article II of this Agreement in the event of any drawing under a Letter of
Credit, and upon drawing under any outstanding Letter of Credit in respect of
which the Agent has deposited in the cash collateral account any amounts
described in clause (ii) above, the Agent shall pay such amounts to itself to
reimburse itself for the amount of such drawing.
ARTICLE IX.
THE AGENT AND CO-AGENTS
SECTION 9.01. APPOINTMENT OF AGENT. Each Lender hereby
designates SunTrust as Agent to administer all matters concerning the Loans and
Letters of Credit and to act as herein specified. Each Lender hereby irrevocably
authorizes, and each holder of any Note by the acceptance of a Note shall be
deemed irrevocably to authorize, the Agent to take such actions on its behalf
under the provisions of this Agreement, the other Credit Documents, and all
other instruments and agreements referred to herein or therein, and to exercise
such powers and to perform such duties hereunder and thereunder as are
specifically delegated to or required of the Agent by the terms hereof and
thereof and such other powers as are reasonably incidental thereto. The Agent
may perform any of its duties hereunder by or through their agents or employees.
SECTION 9.02. AUTHORIZATION OF AGENT WITH RESPECT TO THE
SECURITY DOCUMENTS.
(a) Each Lender hereby authorizes the Agent to enter into
each of the Security Documents substantially in the form attached hereto, and to
take all action contemplated thereby. All rights and remedies under the Security
Documents may be exercised by the Agent for the benefit of the Agent and the
Lenders and the other beneficiaries thereof upon the terms thereof. The Lenders
further agree that the Agent may assign its rights and obligations under any of
the Security Documents to any affiliate of the Agent or to any trustee, if
necessary or
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appropriate under applicable law, which assignee in each such case shall
(subject to compliance with any requirements of applicable law governing the
assignment of such Security Documents) be entitled to all the rights of the
Agent under and with respect to the applicable Security Document.
(b) In each circumstance where, under any provision of any
Security Document, the Agent shall have the right to grant or withhold any
consent, exercise any remedy, make any determination or direct any action by the
Agent under such Security Document, the Agent shall act in respect of such
consent, exercise of remedies, determination or action, as the case may be, with
the consent of and at the direction of the Required Lenders; provided, however,
that no such consent of the Required Lenders shall be required with respect to
any consent, determination or other matter that is, in the Agent's judgment,
ministerial or administrative in nature. In each circumstance where any consent
of or direction from the Required Lenders is required, the Agent shall send to
the Lenders a notice setting forth a description in reasonable detail of the
matter as to which consent or direction is requested and the Agent's proposed
course of action with respect thereto. The Lenders shall endeavor to respond
promptly to such request but in the event the Agent shall not have received a
response from any Lender within five (5) Business Days after such Lender's
receipt of such notice, such Lender shall be deemed not to have agreed to the
course of action proposed by the Agent.
SECTION 9.03. NATURE OF DUTIES OF AGENT. The Agent shall
have no duties or responsibilities except those expressly set forth in this
Agreement and the other Credit Documents. None of the Agent nor any of its
respective officers, directors, employees or agents shall be liable for any
action taken or omitted by it as such hereunder or in connection herewith,
unless caused by its or their gross negligence or willful misconduct. The duties
of the Agent shall be ministerial and administrative in nature; the Agent shall
not have by reason of this Agreement a fiduciary relationship in respect of any
Lender; and nothing in this Agreement, express or implied, is intended to or
shall be so construed as to impose upon the Agent any obligations in respect of
this Agreement or the other Credit Documents except as expressly set forth
herein.
SECTION 9.04. LACK OF RELIANCE ON THE AGENT.
(a) Independently and without reliance upon the Agent, each
Lender, to the extent it deems appropriate, has made and shall continue to make
(i) its own independent investigation of the financial condition and affairs of
the Credit Parties in connection with the taking or not taking of any action in
connection herewith, and (ii) its own appraisal of the creditworthiness of the
Credit Parties, and, except as expressly provided in this Agreement, the Agent
shall have no duty or responsibility, either initially or on a continuing basis,
to provide any Lender with any credit or other information with respect thereto,
whether coming into its possession before the making of the Loans or at any time
or times thereafter.
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(b) The Agent shall not be responsible to any Lender for any
recitals, statements, information, representations or warranties herein or in
any document, certificate or other writing delivered in connection herewith or
for the execution, effectiveness, genuineness, validity, enforceability,
collectibility, priority or sufficiency of this Agreement, the Notes, the
Guaranty Agreements, the Pledge Agreement, or any other documents contemplated
hereby or thereby, or the financial condition of the Credit Parties, or be
required to make any inquiry concerning either the performance or observance of
any of the terms, provisions or conditions of this Agreement, the Notes, the
Guaranty Agreements, the Pledge Agreements or the other documents contemplated
hereby or thereby, or the financial condition of the Credit Parties, or the
existence or possible existence of any Default or Event of Default; provided,
however, to the extent that the Agent has been advised that a Lender has not
received any information formally delivered to the Agent pursuant to Section
6.07, the Agent shall deliver or cause to be delivered such information to such
Lender.
SECTION 9.05. CERTAIN RIGHTS OF THE AGENT. If the Agent
shall request instructions from the Required Lenders with respect to any action
or actions (including the failure to act) in connection with this Agreement, the
Agent shall be entitled to refrain from such act or taking such act, unless and
until the Agent shall have received instructions from the Required Lenders; and
the Agent shall not incur liability in any Person by reason of so refraining.
Without limiting the foregoing, no Lender shall have any right of action
whatsoever against the Agent as a result of the Agent acting or refraining from
acting hereunder in accordance with the instructions of the Required Lenders.
SECTION 9.06. RELIANCE BY AGENT. The Agent shall be entitled
to rely, and shall be fully protected in relying, upon any note, writing,
resolution, notice, statement, certificate, telex, teletype or telecopier
message, cable gram, radiogram, order or other documentary, teletransmission or
telephone message believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person. The Agent may consult with legal
counsel (including counsel for any Credit Party), independent public accountants
and other experts selected by it and shall not be liable for any action taken or
omitted to be taken by it in good faith in accordance with the advice of such
counsel, accountants or experts.
SECTION 9.07. INDEMNIFICATION OF AGENT. To the extent the
Agent is not reimbursed and indemnified by the Credit Parties, each Lender will
reimburse and indemnify the Agent, ratably according to the respective amounts
of the Loans outstanding under all Facilities (or if no amounts are outstanding,
ratably in accordance with the aggregate Commitments), in either case, for and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses (including counsel fees and
disbursements) or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by or asserted against the Agent in performing its duties
hereunder, in any way relating to or arising out of this Agreement or the other
Credit Documents; provided that no Lender shall be liable to the Agent for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the Agent's
gross negligence or willful misconduct.
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SECTION 9.08. THE AGENT IN ITS INDIVIDUAL CAPACITY. With
respect to its obligation to lend under this Agreement, the Loans made by it and
the Notes issued to it, the Agent shall have the same rights and powers
hereunder as any other Lender or holder of a Note and may exercise the same as
though it were not performing the duties specified herein; and the terms
"Lenders", "Required Lenders", "holders of Notes", or any similar terms shall,
unless the context clearly otherwise indicates, include the Agent in its
individual capacity. The Agent may accept deposits from, lend money to, and
generally engage in any kind of banking, trust, financial advisory or other
business with the Consolidated Companies or any affiliate of the Consolidated
Companies as if it were not performing the duties specified herein, and may
accept fees and other consideration from the Consolidated Companies for services
in connection with this Agreement and otherwise without having to account for
the same to the Lenders.
SECTION 9.09. HOLDERS OF NOTES. The Agent may deem and treat
the payee of any Note as the owner thereof for all purposes hereof unless and
until a written notice of the assignment or transfer thereof shall have been
filed with the Agent. Any request, authority or consent of any Person who, at
the time of making such request or giving such authority or consent, is the
holder of any Note shall be conclusive and binding on any subsequent holder,
transferee or assignee of such Note or of any Note or Notes issued in exchange
therefor.
SECTION 9.10. SUCCESSOR AGENT.
(a) The Agent may resign at any time by giving written
notice thereof to the Lenders and Intermet and may be removed at any time with
or without cause by the Required Lenders; provided, however, the Agent may not
resign or be removed until a successor Agent has been appointed and shall have
accepted such appointment. Upon any such resignation or re moval, the Required
Lenders shall have the right to appoint a successor Agent subject to Intermet's
prior written approval. If no successor Agent shall have been so appointed by
the Required Lenders, and shall have accepted such appointment, within 30 days
after the retiring Agent's giving of notice of resignation or the Required
Lenders' removal of the retiring Agent, then the retiring Agent may, on behalf
of the Lenders, appoint a successor Agent subject to Intermet's prior written
approval, which shall be a bank which maintains an office in the United States,
or a commercial bank organized under the laws of the United States of America or
any State thereof, or any Affiliate of such bank, having a combined capital and
surplus of at least $100,000,000.
(b) Upon the acceptance of any appointment as the Agent
hereunder by a successor Agent, such successor Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring Agent's resignation or
removal hereunder as Agent, the provisions of this Article IX shall inure to its
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benefit as to any actions taken or omitted to be taken by it while it was an
Agent under this Agreement.
SECTION 9.11. CO-AGENTS. Each Lender hereby designates NBD
and First Union as the Co-Agents. The Co-Agents, in such capacity, shall have no
duties or obligations whatsoever under this Agreement or any other Credit
Document.
ARTICLE X.
MISCELLANEOUS
SECTION 10.01. NOTICES. All notices, requests and other
communications to any party hereunder shall be in writing (including bank wire,
telex, telecopy or similar teletransmission or writing) and shall be given to
such party at its address or applicable teletransmission number set forth on the
signature pages hereof, or such other address or applicable teletransmission
number as such party may hereafter specify by notice to the Agent and Intermet.
Each such notice, request or other communication shall be effective (i) if given
by telex, when such telex is transmitted to the telex number specified in this
Section and the appropriate answerback is received, (ii) if given by mail, 72
hours after such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid, (iii) if given by telecopy, when such
telecopy is transmitted to the telecopy number specified in this Section and the
appropriate confirmation is received, or (iv) if given by any other means
(including, without limitation, by air courier), when delivered or received at
the address specified in this Section; provided that notices to the Agent shall
not be effective until received.
SECTION 10.02. AMENDMENTS, ETC. No amendment or waiver of
any provision of this Agreement or the other Credit Documents, nor consent to
any departure by any Credit Party therefrom, shall in any event be effective
unless the same shall be in writing and signed by Intermet and the Required
Lenders, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; provided that no
amendment, waiver or consent shall, unless in writing and signed by Intermet and
all the Lenders do any of the following: (i) waive any of the conditions
specified in Section 4.01 or 4.02, (ii) increase the Commitments or other
contractual obligations to Intermet under this Agreement, (iii) reduce the
principal of, or interest on, the Notes or any fees hereunder, (iv) postpone any
date fixed for the payment in respect of principal of, or interest on, the Notes
or any fees hereunder, (v) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Notes, or the number or identity of
Lenders which shall be required for the Lenders or any of them to take any
action hereunder, (vi) agree to release any of the Pledged Stock from the Lien
of the Security Documents to the extent securing the Obligations or to release
any Guarantor from its obligations under any Guaranty Agreement except in
connection with an Asset Sale permitted pursuant to Section 7.04(c) above where
no consent of the Lenders shall be required for such release, (vii) modify the
definition of "Required Lenders," or (viii) modify this Section 10.02.
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Notwithstanding the foregoing, no amendment, waiver or consent shall, unless in
writing and signed by Intermet and the Agent in addition to the Lenders required
hereinabove to take such action, affect the rights or duties of the Agent under
this Agreement or under any other Credit Document.
SECTION 10.03. NO WAIVER; REMEDIES CUMULATIVE. No failure or
delay on the part of the Agent, the Co-Agents, any Lender or any holder of a
Note in exercising any right or remedy hereunder or under any other Credit
Document, and no course of dealing between any Credit Party and the Agent, the
Co-Agents, any Lender or the holder of any Note shall operate as a waiver
thereof, nor shall any single or partial exercise of any right or remedy
hereunder or under any other Credit Document preclude any other or further
exercise thereof or the exercise of any other right or remedy hereunder or
thereunder. The rights and remedies herein expressly provided are cumulative and
not exclusive of any rights or remedies which the Agent, the Co-Agents, any
Lender or the holder of any Note would otherwise have. No notice to or demand on
any Credit Party not required hereunder or under any other Credit Document in
any case shall entitle any Credit Party to any other or further notice or demand
in similar or other circumstances or constitute a waiver of the rights of the
Agent, the Co-Agents, the Lenders or the holder of any Note to any other or
further action in any circumstances without notice or demand.
SECTION 10.04. PAYMENT OF EXPENSES, ETC. Intermet shall:
(i) whether or not the transactions hereby
contemplated are consummated, pay all reasonable, out-of-pocket costs
and expenses of the Agent in the administration (both before and after
the execution hereof and including reasonable expenses actually
incurred relating to advice of counsel as to the rights and duties of
the Agent and the Lenders with respect thereto) of, and in connection
with the preparation, execution and delivery of, preservation of rights
under, enforcement of, and, after a Default or Event of Default,
refinancing, renegotiation or restructuring of, this Agreement and the
other Credit Documents and the documents and instruments referred to
therein, and any amendment, waiver or consent relating thereto
(including, without limitation, the reasonable fees actually incurred
and disbursements of counsel for the Agent), and in the case of
enforcement of this Agreement or any Credit Document after an Event of
Default, all such reasonable, out-of-pocket costs and expenses
(including, without limitation, the reasonable fees actually incurred
and disbursements of counsel), for any of the Co-Agents and the
Lenders;
(ii) subject, in the case of certain Taxes, to the
applicable provisions of Section 3.07(b), pay and hold each of the
Agent, the Co-Agents and the Lenders harmless from and against any and
all present and future stamp, documentary, and other similar Taxes with
respect to this Agreement, the Notes and any other Credit Documents,
any collateral described therein, or any payments due thereunder, and
save each of the
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Lenders harmless from and against any and all liabilities with respect
to or resulting from any delay or omission to pay such Taxes; and
(iii) indemnify the Agent, the Co-Agents and each
Lender, and their respective officers, directors, employees,
representatives and agents from, and hold each of them harmless
against, any and all costs, losses, liabilities, claims, damages or
expenses incurred by any of them (whether or not any of them is
designated a party thereto) (an "Indemnitee") arising out of or by
reason of any investigation, litigation or other proceeding related to
any actual or proposed use of the proceeds of any of the Loans or any
Credit Party's entering into and performing of the Agreement, the
Notes, or the other Credit Documents, including, without limitation,
the reasonable fees actually incurred and disbursements of counsel
(including foreign counsel) incurred in connection with any such
investigation, litigation or other proceeding; provided, however,
Intermet shall not be obligated to indemnify any Indemnitee for any of
the foregoing arising out of such Indemnitee's gross negligence or
willful misconduct;
(iv) In addition to amounts payable elsewhere
provided in this Agreement, without duplication, indemnify, pay and
save the Agent harmless from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and reasonable expenses
(including reasonable attorney's fees and disbursements) which the
Agent may incur or be subject to as a consequence, direct or indirect,
of (i) the issuance of any Letter of Credit for the account of
Intermet, other than as a result of the gross negligence or willful
misconduct of the Agent; (ii) the failure of the Agent to honor a
drawing under any Letter of Credit due to any act or omission (whether
rightful or wrongful) of any present or future de jure or de facto
government or governmental authority; or (iii) any confirmation of any
Letter of Credit obtained by the Agent with the consent of Intermet;
(v) without limiting the indemnities set forth
above, indemnify each Indemnitee for any and all expenses and costs
(including without limitation, remedial, removal, response, abatement,
cleanup, investigative, closure and monitoring costs), losses, claims
(including claims for contribution or indemnity and including the cost
of investigating or defending any claim and whether or not such claim
is ultimately defeated, and whether such claim arose before, during or
after any Credit Party's ownership, operation, possession or control of
its business, property or facilities or before, on or after the date
hereof, and including also any amounts paid incidental to any
compromise or settlement by the Indemnitee or Indemnitees to the
holders of any such claim), lawsuits, liabilities, obligations,
actions, judgments, suits, disbursements, encumbrances, liens, damages
(including without limitation damages for contamination or destruction
of natural resources), penalties and fines of any kind or nature
whatsoever (including without limitation in all cases the reasonable
fees actually incurred, other charges and disbursements of counsel in
connection therewith) incurred, suffered or sustained by that
Indemnitee based upon, arising under or relating to Environmental Laws
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based on, arising out of or relating to in whole or in part, the
existence or exercise of any rights or remedies by any Indemnitee under
this Agreement, any other Credit Document or any related documents (but
excluding those incurred, suffered or sustained by any Indemnitee as a
result of any action taken by or on behalf of the Lenders with respect
to any Subsidiary of Intermet (or the assets thereof) owned or
controlled by the Lenders, the Agent, the Co-Agents, or their nominees
or designees, as a result of their acquisition of Pledged Stock
pursuant to exercise of remedies under the Pledge Agreements).
If and to the extent that the obligations of Intermet under this Section 10.04
are unenforceable for any reason, Intermet hereby agrees to make the maximum
contribution to the payment and satisfaction of such obligations which is
permissible under applicable law.
SECTION 10.05. RIGHT OF SETOFF. In addition to and not in
limitation of all rights of offset that any Lender or other holder of a Note may
have under applicable law, each Lender or other holder of a Note shall, upon the
occurrence of any Event of Default and whether or not such Lender or such holder
has made any demand or any Credit Party's obligations are matured, have the
right to appropriate and apply to the payment of any Credit Party's obligations
hereunder and under the other Credit Documents, all deposits of any Credit Party
(general or special, time or demand, provisional or final) then or thereafter
held by and other indebtedness or property then or thereafter owing by such
Lender or other holder to any Credit Party, whether or not related to this
Agreement or any transaction hereunder. Each Lender shall promptly notify
Intermet of any offset hereunder.
SECTION 10.06. BENEFIT OF AGREEMENT.
(a) This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the respective successors and assigns of the
parties hereto, provided that Intermet may not assign or transfer any of its
interest hereunder without the prior written consent of the Lenders.
(b) Any Lender may make, carry or transfer Loans at, to or
for the account of, any of its branch offices or the office of an Affiliate of
such Lender.
(c) Each Lender may assign all or a portion of its
interests, rights and obligations under this Agreement (including all or a
portion of any of its Commitments, Letter of Credit Obligations and the Loans at
the time owing to it and the Notes held by it) to any Eligible Assignee;
provided, however, that (i) the Agent and Intermet must give their prior written
consent to such assignment (which consent shall not be unreasonably withheld)
unless such assignment is to an Affiliate of the assigning Lender or, in the
case of Intermet, unless an Event of Default has occurred and is continuing,
(ii) the amount of the Commitments or Loans or Letter of Credit Obligations, of
the assigning Lender subject to each assignment (determined as of the
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date the assignment and acceptance with respect to such assignment is delivered
to the Agent) shall not be less than $5,000,000, (iii) the parties to each such
assignment shall execute and deliver to the Agent an Assignment and Acceptance,
together with a Note or Notes subject to such assignment and, unless such
assignment is to an Affiliate of such Lender, a processing and recordation fee
of $2500, and (iv) the assignee must execute and deliver a confirmation of its
acceptance of the terms and conditions of the Intercreditor Agreement to the
other parties to the Intercreditor Agreement in accordance with Section 10(g)
thereof. Intermet shall not be responsible for such processing and recordation
fee or any costs or expenses incurred by any Lender or the Agent in connection
with such assignment. From and after the effective date specified in each
Assignment and Acceptance, which effective date shall be at least five (5)
Business Days after the execution thereof, the assignee thereunder shall be a
party hereto and to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under this Agreement.
Notwithstanding the foregoing, the assigning Lender must retain after the
consummation of such Assignment and Acceptance, a minimum aggregate amount of
Commitments, the Loans and the Letter of Credit Obligations, as the case may be,
of $20,000,000 (unless the Lender is assigning its entire Commitment); provided,
however, no such minimum amount shall be required with respect to any such
assignment made at any time there exists an Event of Default hereunder. Within
five (5) Business Days after receipt of the notice and the Assignment and
Acceptance, Intermet, at its own expense, shall execute and deliver to the
Agent, in exchange for the surrendered Note or Notes, a new Note or Notes to the
order of such assignee in a principal amount equal to the applicable Commitments
assumed by it pursuant to such Assignment and Acceptance and new Note or Notes
to the assigning Lender in the amount of its retained Commitment or Commitments.
Such new Note or Notes shall be in an aggregate principal amount equal to the
aggregate principal amount of such surrendered Note or Notes, shall be dated the
date of the surrendered Note or Notes which they replace, and shall otherwise be
in substantially the form attached hereto.
(d) Each Lender may, without the consent of Intermet or the
Agent, sell participations to one or more banks or other entities in all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitments, the Letter of Credit Obligations and the Loans owing
to it and the Notes held by it), provided, however, that (i) no Lender may sell
a participation in its aggregate Commitments (after giving effect to any
permitted assignment hereof) in an amount in excess of fifty percent (50%) of
such aggregate Commitments, provided, however, sales of participations to an
Affiliate of such Lender shall not be included in such calculation; provided,
however, no such maximum amount shall be applicable to any such participation
sold at any time there exists an Event of Default hereunder, (ii) such Lender's
obligations under this Agreement shall remain unchanged, (iii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations, and (iv) the participating bank or other entity shall not be
entitled to the benefit (except through its selling Lender) of the cost
protection provisions contained in Article III of this Agreement, and (v)
Intermet and the Agent and other Lenders shall continue to deal solely and
directly with each Lender in connection with such Lender's rights and
obligations under this Agreement and the other Credit Documents, and such Lender
shall retain the sole right to enforce
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the obligations of Intermet relating to the Loans and to approve any amendment,
modification or waiver of any provisions of this Agreement. Any Lender selling a
participation hereunder shall provide prompt written notice to Intermet of the
name of such participant.
(e) Any Lender or participant may, in connection with the
assignment or participation or proposed assignment or participation, pursuant to
this Section, disclose to the assignee or participant or proposed assignee or
participant any information relating to Intermet or the other Consolidated
Companies furnished to such Lender by or on behalf of Intermet or any other
Consolidated Company. With respect to any disclosure of confidential,
non-public, proprietary information, such proposed assignee or participant shall
agree to use the information only for the purpose of making any necessary credit
judgments with respect to this credit facility and not to use the information in
any manner prohibited by any law, including without limitation, the securities
laws of the United States. The proposed participant or assignee shall agree not
to disclose any of such information except (i) to directors, employees, auditors
or counsel to whom it is necessary to show such information, each of whom shall
be informed of the confidential nature of the information, (ii) in any statement
or testimony pursuant to a subpoena or order by any court, governmental body or
other agency asserting jurisdiction over such entity, or as otherwise required
by law (provided prior notice is given to Intermet and the Agent unless
otherwise prohibited by the subpoena, order or law), and (iii) upon the request
or demand of any regulatory agency or authority with proper jurisdiction. The
proposed participant or assignee shall further agree to return all documents or
other written material and copies thereof received from any Lender, the Agent or
Intermet relating to such confidential information unless otherwise properly
disposed of by such entity.
(f) Any Lender may at any time assign all or any portion of
its rights in this Agreement and the Notes issued to it to a Federal Reserve
Bank; provided that no such assignment shall release the Lender from any of its
obligations hereunder.
(g) If (i) any Taxes referred to in Section 3.07(b) have
been levied or imposed so as to require withholdings or deductions by Intermet
and payment by Intermet of ad ditional amounts to any Lender as a result
thereof, (ii) any Lender shall make demand for payment of increased costs or
reduced rate of return pursuant to Section 3.10 or any Lender determines that
LIBOR is unascertainable or illegal pursuant to Section 3.08 or Section 3.09, or
any Lender makes a claim for increased costs or determines that its
participation in any Letter of Credit is illegal pursuant to Section 3.09, or
(iii) any Lender shall decline to consent to a modification or waiver of the
terms of this Agreement or the other Credit Documents requested by Intermet,
then and in such event, upon request from Intermet delivered to such Lender and
the Agent, such Lender shall assign, in accordance with the provisions of
Section 10.06(c), all of its rights and obligations under this Agreement and the
other Credit Documents to another Lender or an Eligible Assignee selected by
Intermet, in consideration for the payment by such assignee to the Lender of the
principal of, and interest on, the outstanding Loans accrued to the date of such
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assignment, and the assumption of such Lender's Commitment hereunder, together
with any and all other amounts owing to such Lender under any provisions of this
Agreement or the other Credit Documents accrued to the date of such assignment;
provided, however, Lenders subject to this Section 10.06 shall be treated in a
substantially identical manner.
SECTION 10.07. GOVERNING LAW; SUBMISSION TO JURISDICTION;
WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER AND UNDER THE NOTES SHALL BE CONSTRUED IN ACCORDANCE WITH AND
BE GOVERNED BY THE LAW (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES
THEREOF) OF THE STATE OF GEORGIA.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT, THE NOTES OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN THE SUPERIOR
COURT OF XXXXXX COUNTY, GEORGIA, OR ANY OTHER COURT OF THE STATE OF GEORGIA OR
OF THE UNITED STATES OF AMERICA FOR THE NORTHERN DISTRICT OF GEORGIA, AND, BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, INTERMET HEREBY ACCEPTS FOR ITSELF AND
IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF
THE AFORESAID COURTS. THE PARTIES HERETO HEREBY IRREVOCABLY WAIVE TRIAL BY JURY,
AND INTERMET HEREBY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING, WITHOUT
LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF
FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY
SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS.
(c) INTERMET HEREBY IRREVOCABLY DESIGNATES CSC/PRENTICE
HALL, INC., AS ITS DESIGNEE, APPOINTEE AND LOCAL AGENT TO RECEIVE, FOR AND ON
BEHALF OF INTERMET, SERVICE OF PROCESS IN SUCH RESPECTIVE JURISDICTIONS IN ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR THE NOTES OR ANY
DOCUMENT RELATED THERETO. IT IS UNDERSTOOD THAT A COPY OF SUCH PROCESS SERVED ON
SUCH LOCAL AGENT WILL BE PROMPTLY FORWARDED BY SUCH LOCAL AGENT AND BY THE
SERVER OF SUCH PROCESS BY MAIL TO INTERMET AT ITS ADDRESS SET FORTH OPPOSITE ITS
SIGNATURE BELOW, BUT THE FAILURE OF INTERMET TO RECEIVE SUCH COPY SHALL NOT
AFFECT IN ANY WAY THE SERVICE OF SUCH PROCESS. INTERMET FURTHER IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY
SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR
CERTIFIED MAIL,
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POSTAGE PREPAID, TO INTERMET AT ITS SAID ADDRESS, SUCH SERVICE TO BECOME
EFFECTIVE 30 DAYS AFTER SUCH MAILING.
(d) Nothing herein shall affect the right of the Agent, any
Co-Agent, any Lender, any holder of a Note or any Credit Party to serve process
in any other manner permitted by law or to commence legal proceedings or
otherwise proceed against Intermet in any other jurisdiction.
SECTION 10.08. INDEPENDENT NATURE OF LENDERS' RIGHTS. The
amounts payable at any time hereunder to each Lender shall be a separate and
independent debt, and each Lender shall be entitled to protect and enforce its
rights pursuant to this Agreement and its Notes, and it shall not be necessary
for any other Lender to be joined as an additional party in any proceeding for
such purpose.
SECTION 10.09. COUNTERPARTS. This Agreement may be executed
in any number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument.
SECTION 10.10. EFFECTIVENESS; SURVIVAL.
(a) This Agreement shall become effective on the date (the
"Effective Date") on which all of the parties hereto shall have signed a copy
hereof (whether the same or different copies) and shall have delivered the same
to the Agent pursuant to Section 10.01 or, in the case of the Lenders, shall
have given to the Agent written or telex notice (actually received) that the
same has been signed and mailed to them.
(b) The obligations of Intermet under Sections 3.07(b),
3.12, 3.10, 3.13, 10.04 and 10.15 hereof shall survive the payment in full of
the Notes and all other Obligations after the Maturity Date. All representations
and warranties made herein, in the certificates, reports, notices, and other
documents delivered pursuant to this Agreement shall survive the execution and
delivery of this Agreement, the other Credit Documents, and such other agree
ments and documents, the making of the Loans hereunder, and the execution and
delivery of the Notes.
SECTION 10.11. SEVERABILITY. In case any provision in or
obligation under this Agreement or the other Credit Documents shall be invalid,
illegal or unenforceable, in whole or in part, in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
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SECTION 10.12. INDEPENDENCE OF COVENANTS. All covenants
hereunder shall be given independent effect so that if a particular action or
condition is not permitted by any of such covenants, the fact that it would be
permitted by an exception to, or be otherwise within the limitation of, another
covenant, shall not avoid the occurrence of a Default or an Event of Default if
such action is taken or condition exists.
SECTION 10.13. CHANGE IN ACCOUNTING PRINCIPLES, FISCAL YEAR
OR TAX LAWS. If (i) any preparation of the financial statements referred to in
Section 6.07 hereafter occasioned by the promulgation of rules, regulations,
pronouncements and opinions by or required by the Financial Accounting Standards
Board or the American Institute of Certified Public Accounts (or successors
thereto or agencies with similar functions) (other than changes mandated by FASB
106) result in a material change in the method of calculation of financial
covenants, standards or terms found in this Agreement, (ii) there is any change
in Intermet's fiscal quarter or fiscal year, or (iii) there is a material change
in federal tax laws which materially affects any of the Consolidated Companies'
ability to comply with the financial covenants, standards or terms found in this
Agreement, Intermet and the Required Lenders agree to enter into negotiations in
order to amend such provisions so as to equitably reflect such changes with the
desired result that the criteria for evaluating any of the Consolidated
Companies' financial condition shall be the same after such changes as if such
changes had not been made. Unless and until such provisions have been so
amended, the provisions of this Agreement shall govern.
SECTION 10.14. HEADINGS DESCRIPTIVE; ENTIRE AGREEMENT. The
headings of the several sections and subsections of this Agreement are inserted
for convenience only and shall not in any way affect the meaning or construction
of any provision of this Agreement. This Agreement, the other Credit Documents,
and the agreements and documents required to be delivered pursuant to the terms
of this Agreement constitute the entire agreement among the parties hereto and
thereto regarding the subject matters hereof and thereof and supersede all prior
agreements, representations and understandings related to such subject matters.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and to be delivered in Atlanta, Georgia, by their
duly authorized officers as of the day and year first above written.
Address for Notices: INTERMET CORPORATION
0000 Xxxxxxxxx Xxxxx By: /s/ Xxxxxxx X. Xxxxxxxxx
Xxxxx 00 ___________________________________
Xxxx, Xxxxxxxx 00000 Xxxxxxx X. Xxxxxxxxx
Vice President-Finance
Attn: Xxxxxxx X. Xxxxxxxxx
Telephone: (000) 000-0000 Attest: /s/ Xxxxx X. Xxxxx
Telecopy: (000) 000-0000 -------------------------------
Xxxxx X. Xxxxx
Secretary
[CORPORATE SEAL]
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Address for Notices: SUNTRUST BANK, ATLANTA,
AS AGENT
Xxx Xxxx Xxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000 By: /s/ C. Xxx Xxxxxx, Xx.
Attention: C. Xxx Xxxxxx, Xx. -----------------------------------
C. Xxx Xxxxxx, Xx.
Vice President
Telex No.: 542210
Answerback: TRUSCO INT ATL
Telecopy No.: 404/588-8833 By: /s/ Xxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxx X. Xxxx
------------------------------
Title: Vice President
Payment Office: ------------------------------
Xxx Xxxx Xxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
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Address for Notices: SUNTRUST BANK, ATLANTA
Xxx Xxxx Xxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000 By: /s/ C. Xxx Xxxxxx, Xx.
Attention: C. Xxx Xxxxxx, Xx. -----------------------------------
Telex No.: 542210 C. Xxx Xxxxxx, Xx.
Vice President
Answerback: TRUSCO INT ATL
Telecopy No.: 404/588-8833 By: /s/ Xxxxxx X. Xxxx
-----------------------------------
Name: Xxxxxx X. Xxxx
-----------------------------
Title: Vice President
-----------------------------
Lending Office and Payment Office:
Xxx Xxxx Xxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
COMMITMENT: $100,000,000
PRO RATA SHARE OF
COMMITMENTS: 50%
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Address for Notices: NBD BANK, INDIVIDUALLY AND AS CO-AGENT
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000 By: /s/ Xxxxxxx X. Xxxxxxx
Attention: Xxxxxxx X. Xxxxxxx __________________________________
Vice President
Name: Xxxxxxx X. Xxxxxxx
___________________________
Title: Vice President
____________________________
Telex No.: 164177
Answerback: NATIONSBANK DET
Telecopy No.: (000) 000-0000
Lending Office and Payment Office:
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
COMMITMENT: $50,000,000
PRO RATA SHARE OF
COMMITMENTS: 25%
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Address for Notices: FIRST UNION NATIONAL
BANK OF NORTH CAROLINA, INDIVIDUALLY
AND AS CO-AGENT
Xxx Xxxxx Xxxxx Xxxxxx
XX-00
Xxxxxxxxx, XX 00000-0000 By: /s/ Xxxx X. Xxxxxx
__________________________________
Attn: Xxxxx Xxxxxxx Xxxx X. Xxxxxx
Vice President
Telex No.:
Answerback:
Telecopy: (000) 000-0000
Lending Office and Payment Office:
Xxx Xxxxx Xxxxx Xxxxxx, XX00
Xxxxxxxxx, XX 00000-0000
COMMITMENT: $50,000,000
PRO RATA SHARE OF
COMMITMENTS: 25%
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